The CFI has upheld a decision of the OHIM Board of Appeal in invalidity proceedings, and ruled that the word mark VISIBLE WHITE owned by Colgate-Palmolive Co was descriptive of toothpaste and mouthwash in class 3 under Article 7(1)(c) of the Community Trade Mark Regulation (40/94/EEC). The court ruled that the words “visible” and “white” were both descriptive, as they allowed the relevant English-speaking public to detect immediately and without further reflection the description of a fundamental characteristic of the goods concerned, namely that their use made the white colour of teeth visible. The court then considered whether the mark as a whole was descriptive. It found that the association of the two words was not unusual in structure but made up a familiar expression in English for designating the goods concerned.
Practical Law 12.12.08
