With decisions of 15 October 2015 the First Board of Appeal of the OHIM has dealt with six cases, namely R 279/2014-1, Silverado, R 280/2014-1, Goldrush, R 528/2014-1, Geisha, R 691/2014-1, Wasabi, R 894/2014-1, Skyfire; R 895/2014-1, Ice Tea (CPVO Case-law database)
With these decisions the Board of Appeal of the OHIM has clarified its approach regarding the refusal of applications for CTMs due to their identity with already registered denominations of plant varieties.
In preparation of the decisions, on 27 April 2015 the Board of Appeal had a public oral hearing with the applicant’s representative and experts from the CPVO and two breeders Organizations, in order to find out more about the commercial background of the cases.
Among the different grounds to refuse an application for CTM (the so called absolute grounds for refusal) the Board of Appeal concluded that if a trademark is applied to cover varieties that do not belong to closely related species, the trademark can be registered. In doing so, the Board of Appeal aligns the interpretation of closely related species to UPOV classes.
Since the applicant had specifically excluded the varieties of the same botanical genus as the plant variety denomination that was registered, the obstacle for the applied-for CTM not being distinctive for closely related species under the CTM Regulation, in particular, was removed and the CTM registrations granted.