Recent Jurisprudence – Prohibition against Registration of Descriptive Trademarks

December 8, 2011
Recent Jurisprudence – Prohibition against Registration of Descriptive Trademarks

Recently, the Fourth Collegiate Court on Administrative Matters of the First Circuit issued legal opinion numberI.4o.A. J/102 (9a.), titled “Intellectual Property. Characteristics of Descriptive Trademarks and Reasons toProhibit their Registration.” In its legal opinion, the Court held that a mark is descriptivewhen it refers to the quality, characteristics or properties corresponding to the product or service offered in themarketplace, the differentiation of which is intended. Additionally, the Court determined that foreign words willhave such characteristic “only when the consumer, by means of the products or services referred to, directlyperceives the descriptive character or function of such name designation”. The foregoing is in consideration ofthat fact that the legislature’s intent is to avoid unfair competition between manufacturers ormerchants by preventing the individual appropriation of common expressions thateveryone has the right to use. Accordingly, the Fourth Collegiate Court on Administrative Matters of the FirstCircuit determined that the prohibition against registering descriptive marks is supported precisely by their lackof a distinctive characteristic in providing the public information on the properties and characteristics of theproduct, and the need to maintain such descriptive language that it may be freely available to used bythose who operate in the corresponding market segment.

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