Which sign cannot be a trade mark?
A trade mark should distinguish the goods or services designated by it from other similar kinds of goods or services. Therefore any sign cannot be a trade mark. Some signs should remain available for use by all the entrepreneurs.
The following cannot be a trade mark:
- signs which are devoid of any distinctive character;
- signs which describe the characteristics of the goods or services;
- signs which have become customary in the particular field of activity or in general business practice;
- signs which are of such nature as to mislead the consumer;
- genuine and ordinary images of products or packages;
- signs which are contrary to public order or accepted principles of morality.
If a sign which is devoid of any distinctive character or which describes the goods or services or which has become customary contains in a trade mark, such sign is not subject to protection. The proprietor of the trade mark does not have an exclusive right for the use of that part of the trade mark, i.e. such signs can be used freely by all the entrepreneurs, even if the registered trade mark contains any of them.
As an exception, a sign which is devoid of any distinctive character or which describes the goods or services or which has become customary, can be registered as a trade mark, if it has become well known in Estonia or if it has acquired a distinctive character following the use of a trade mark during a long period of time. A trade mark is recognised as being well known if the trade mark is known to the majority of the population of Estonia or to the target group of the particular goods and/or services or to the persons who are engaged in the particular field of business.
(Absolute circumstances which preclude legal protection - TMA § 9).