IP-bits in Letters 11 November 2018 Position Mark As a Trademark (Presentation Slides)

Abstract

From time to time trademark infringement and invalidation litigations deal with the so called ‘position trademarks’. A position trademark is characterised by a specific position of the mark on the goods. This position - together with all other trademark characteristics - belongs to the scope of trademark protection. Neither old nor new EU Trade Mark Directive [i.e. Directive 2008/95/EC or Directive (EU) 2015/2436, respectively] introduce the concept of a position trademark. The term ‘a position mark’ has been introduced in the trademark practice to emphasise on the additional trademark characteristic/feature, that is, the position of the mark on the product. In this letter, I present the opinion that the concept of ‘a position mark’ is a very broad concept which covers several different types of trademarks. Therefore, I suggest distinguishing between different types of the position trademarks, as the difference might have a significant impact on the distinctiveness of a trademark and the application of the absolute grounds of trademark invalidation.