Helly's position

17 October 2019

For trademark agencies, wordmarks and logos are welcome guests. These trademarks are generally accepted unless they have distinctiveness issues.

Less traditional signs however, have a much harder time. A color mark, a sound, films and decorations that appear in variants have a lot of hurdles to take before they are accepted, at least in the EU.

And once accepted, the use requirement lurks. These use requirements killed the three stripes of adidas (registered as vertical stripes): the Court saw no use of these three vertical stripes on products. Variants were not seen as genuine trademark use. Whereas in the real world experiences are increasingly becoming 5-dimensional in which image, sound, smell and feeling play a part in a (brand) experience, this appears to be difficult to claim through trademark law.

Another non traditional trademark is the position mark. One of the best known position mark is the red tab of Levi’s. Helly Hansen recently also attempted to claim a position mark: “The mark consists of slanted parallel striping of 1/1,33 ratio. The mark runs along the full length or lower part of the sleeve of the garment.”

However, the image concerned a garment and with a tab with HH on it. To exclude certain elements of a garment in a trademark application, you must display these elements in dotted lines. That has not happened in this application, which means that normally the entire trademark must be assessed, whereby the HH tab can nevertheless be seen as a reference to Helly Hansen. But no, the mark is refused because the sign is not perceived as a trademark. According to the EUIPO, the relevant public will not be able to recognize by the parallel lines that the products come from Helly Hansen.

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