No win for WinDVD Creator

The IPKat reports on today’s CFI decision in Case T-105/06 Intervideo v OHIM.

OHIM refused to register the mark WinDVD Creator, since it was descriptive. Quite right, said the CFI, dismissing Intervideo’s appeal.

This was not a neologism of the sort that consumers would see as being greater than the sum of its descriptive parts. The goods in question were indeed to be used to create (or at least write) DVDs, and Win would be see as referring to Microsoft’s operating system. Said the court:

It is common ground that Windows, the operating system of Microsoft Corporation, is commonly used in the information technology field by average personal computer users. There is no doubt that among those personal computer users, including even those who use a computer for their personal or professional activities on a daily basis, there are many who are unfamiliar with both the technical details of the functioning of the Windows operating system and information technology language in general. Although it is true that not all personal computer users have such specific knowledge in the field, the word ‘win’ where it appears in relation to computers, and in particular software, will automatically and immediately be understood by the majority as an abbreviation or a shortened reference to Windows. Thus, an average personal computer user will be led to believe that the word ‘win’ refers to the Windows system in the context of information technology.

This is one of those situations that gives the IPKat a headache. WINDOWS is such a strong trade mark that even the first part of it will be seen as referring to Microsoft’s product, yet at the same time, it’s being treated as a descriptive element. It’s rather like GOOGLE: yes, it’s descriptive, but it’s only descriptive of the goods one company which has a virtual monopoly.