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1.
A trade mark consisting of a sign which has itself no distinctive character cannot be registered, except that it has acquired such distinctive character as a result if its previous use in the market (Arts. 4 and 5 of the Spanish Trade Mark Law 17/2001).
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2.
The acquisition of distinctiveness is a question of fact, which must be fully proved by the party who argues it in relation to the specific market, regardless of other national jurisdictions.
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3.
A basic geometric figure of an excessive simplicity and of a common colour lacks of distinctiveness.
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A case note to this Decision by A. Flores can be found at doi:10.1007/s40319-014-0231-x.
Translated by Ana Flores; Lawyer, SNAbogados, Barcelona (Spain); aflores@snabogados.com.
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Decision of the Supreme Court (Administrative Disputes Division, 3rd Section) 2 December 2013 – Appeal No. 4301/2012. “Orange”. IIC 45, 603–606 (2014). https://doi.org/10.1007/s40319-014-0230-y
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DOI: https://doi.org/10.1007/s40319-014-0230-y