De 16PF persoonlijkheidsvragenlijst

07-06-2011 Print this page

B9 7961. Gerecht EU, 7 juni 2011, T-507/08, Psytech International tegen OHIM / Institute for Personality & Ability Testing (IPAT)

Merkenrecht. Nietigheidsactie tegen IPAT’s  Gemeenschapswoordmerk ‘16PF’ (psychologische testen, met name m.b.t. de ‘16 Personality Factors’ theorie).  Het Gerecht bevestigt de beslissing van het OHIM en verwerpt de nietigheidsactie. Het merk 16PF is niet beschrijvend, niet verworden tot soortnaam en beschikt over voldoende onderscheidend vermogen. Geen depot te kwader trouw: “a person’s right to protect his own mark cannot be undermined by unlawful use of that mark on the part of third parties.”

41. In that regard, it must be pointed out that, even if a section of the relevant public could perceive, without further thought, the intervener’s mark as referring to Dr Cattell’s 16 factor personality test, that would suggest that that mark performs the essential function of a trade mark which is to allow identification of commercial origin.

59. In the present case, the Board of Appeal was right to find that 16PF was commonly used in scientific publications to designate a specific questionnaire based on Dr Cattell’s research. The Board of Appeal found however that that was not sufficient to prove that the sign 16PF is generic in nature, because the specialised public was informed that that questionnaire came from a particular source. In other words, 16PF is commonly referred to as a source indicator and not as ‘an equivalent of any type of personality questionnaire’, regardless of its commercial origin.

90 (…) It must be pointed out, first, that the fact that the applicant for the trade mark knows or must know that a third party has for a long time been using, in at least one Member State, an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought is not sufficient, in itself, to prove that there is bad faith on the part of the applicant for the trade mark and, secondly, that a person’s right to protect his own mark cannot be undermined by unlawful use of that mark on the part of third parties.

91. Furthermore, it is apparent from the file that the intervener acted in order to prevent such a use of its mark 16PF (see paragraph 27 of the contested decision). The Board of Appeal correctly stated that it was altogether legitimate to take the measures necessary to protect a mark of which the holder legitimately claims to be the proprietor, including the registration of that mark.

De website van Psytech bericht inmiddels: "To prevent confusion with the 16PF Instruments developed and marketed by IPAT, Psytech is renaming its highly successful questionnaire, formerly known as the 16PF Industrial, to the 15FQ Plus.”

Lees het arrest hier.