LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre, Elvinger Hoss Prussen
es, quality, accuracy or other characteristics, with the exception of geographical origin, from goods and services that are not so certified. A trade mark may consist of any signs, in particular words (including personal names) or designs, letters, numerals, colours, the shape of goods or of the pack - aging of goods, or sounds, provided that such signs are capable of being represented on the register in a manner that enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its owner. It is not currently possible to apply for an olfactory or taste trade mark as a Benelux trade mark. The distinctive symbols or insignia consisting of the five interlaced Olympic rings and the Olympic motto “citius, altius, fortius” are protected by grand ducal regulation in Luxembourg, as are the emblems of the Luxembourg Olympic and Sports Committee approved by the International Olympic Committee. The unau - thorised use of the coat of arms of the Grand Ducal House, those of the State and of the communes, the national flag, the waterway and aviation pavilion and the national anthem, as well as all badges, emblems and symbols used by the authorities and by public entities, is also criminally sanctioned. Luxembourg protects famous trade marks (ie, trade marks that are registered but not for the goods and services for which protection is sought) or well-known trade marks to the extent they have a reputation in Luxembourg. 2.2 Essential Elements of Trade Mark Protection Any sign can qualify for trade mark protection if it is capable of: • distinguishing the goods or services of one under - taking from those of other undertakings (distinc - tiveness); and • being represented on the register in a manner that enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to the owner.
Grounds for the refusal of an application or the invalid - ity of a registration may include: • signs that cannot constitute a trade mark; • trade marks that are devoid of distinctive charac - ter; • trade marks that are contrary to public policy or morality; • trade marks that are liable to mislead the public (eg, as to the nature, quality or geographical origin of the product or service); and • trade marks that are identical or similar to an earlier trade mark. The distinctive character of a sign is a relative concept that must be assessed on a case-by-case basis, in relation to the goods and services for which the trade mark is applied for. If a sign does not, in itself, have distinctive charac - ter, it may acquire it through use. Acquired distinctive character means that, as a consequence of its use, the sign is now perceived by the relevant section of the public as being a trade mark that distinguishes the goods or services of the applicant. As indicated on the website of the Benelux Office for Intellectual Property (BOIP), supporting documents may concern the sign’s market share or the intensive, geographi - cally widespread and long-standing nature of the use of the sign, statements from trade and professional associations or opinion polls. Finally, the exclusive rights granted to the owner of a Benelux trade mark are subject to the registration of the trade mark (except for well-known trade marks). 2.3 Trade Mark Rights A trade mark owner is granted exclusive rights, and is entitled to prevent any third party from using a sign in the course of trade without their consent when: • the sign is identical to the earlier trade mark and the goods or services at stake are also identical; or • the sign is identical or similar to the earlier trade mark, the goods or services at stake are identical or similar and there is a likelihood of confusion on the part of the public between the sign and the earlier trade mark.
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