What! EU Court Nixes Trademark for Exclamation Point

A European Union court has affirmed that a German company cannot obtain trademark registrations for an exclamation point.

The Court of First Instance agreed with the Office of Harmonization for the Internal Market that the marks that JOOP! GmbH applied for were "devoid of distinctive character."

OHIM is the official trademarks and designs registration office of the European Union.

JOOP! manufactures jewelry, clothes and related goods. The company filed two trademark applications in 2006. One mark included a simple bold exclamation point. The second was the same bold exclamation point inside a rectangular frame. OHIM rejected both applications.

On appeal, the court acknowledged that signs can obtain trademark protection as part of an advertising slogan so long as the sign is distinctive and can be perceived immediately as an indication of the commercial origin of goods or services.

JOOP!'s proposed use of the exclamation point could not be considered capable of identifying the commercial origin of the goods it designates, the court said.

A discerning consumer could not infer the origin of goods designated by relying on a mere exclamation mark, the court reasoned.

Even when surrounded by the rectangular frame, which gave the exclamation point the appearance of a label, the mark was not sufficiently distinctive, the court said.

The court rejected JOOP!'s argument that the mark may have acquired distinctiveness over time, since there was no proof that the mark had acquired distinctiveness before the date of the trademark application.

JOOP! may have had better luck in America.

"A different result would be likely in the U.S.," said Sam Apicelli, an intellectual property attorney with Duane Morris in Philadelphia.

The U.S. Patent and Trademark Office even has a category of trademark classifications for punctuation marks, Apicelli noted.

At least two trademarks have been issued for such marks, he said. One company obtained a U.S. trademark for an ampersand, another for a mark consisting of three periods and a comma.

"It's a bit ironic, Apicelli said. "Both of the trademarks are owned by European companies."

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