Wednesday, May 13, 2009

The Maple Leaf Forever? - Maybe not in Europe

Well, the fur is flying fast in Europe and it’s all about Canada.

My esteemed fellow feline fanciers and IP afficionados at IPKat have brought to world attention the case of the attempted appropriation of the Canadian Maple Leaf - an “official” national emblem - by a private company called American Clothing Associates SA (ACA). It seems that ACA sought registration in the EU for the mark above as a Community trade mark for ‘leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ (Class 18), 'clothing, footwear, headgear’ (Class 25) and ‘tailoring; taxidermy; bookbinding; dressing, processing and finishing of skins, leather, furs and textiles; photographic film development and photographic printing; woodworking; fruit pressing; grain milling; processing, tempering and finishing of metal surfaces’ (Class 40).

Whether ACA sells seal skins and fur from Canada is unknown. Could that be the reason it covets our maple leaf?

To make a long story short, the examiner and the first Board of Appeal rejected registration for both classes on the basis that article 6ter of the Paris Convention protects national emblems. To everyone’s surprise, however, the Court of First Instance (CFI) allowed registration for services - on the basis that the Community legislation did not forbid it and that legislation was not inconsistent with the Paris Convention in the CFI’s view.

The case is now before the European Court of Justice (ECJ) and the Advocate General’s opinion has been published, which is available here. These “opinions” are not judgments but are usually followed by the Courts. The Advocate General would reverse the CFI and deny registration both for goods and services. My friend and fellow cat fancier Jeremy feels that this may be good policy but not necessarily a literally correct reading of the legislation and the treaty. He says:
The IPKat suspects that, on policy grounds if for no other reason, the Court would prefer to reach the conclusion regarding service marks that has been proposed by the Advocate General, but wonders how sound his arguments are. What we have here is really an argument that you have to give effect to the essential function of the Convention, which is defined by the broad terms of its preamble rather than the narrower substantive provisions by which its members are bound. It is inconceivable that the legislative intent was to create and apply a strict distinction between marks for goods and services, but what we are dealing with here is an absence of intention rather than a positive -- and many people would prefer Europe's highest court to apply the law rather than to create it.
It will be interesting to see how this turns out. It would be astonishing if national emblems can be taken for use as service marks.

I shall try to find out why Canada apparently has taken no part in this exercise. One would think that our Government had an interest to protect.

BTW, they love maple syrup in Europe. Let us close with a heart warming rendition of "The Maple Leaf Forever":


UPDATE: Here's a story in the Ottawa Citizen on May 20, 2009 about this from Peter O'Neil.

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