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Black clouds over Skype…

Skye terrier, skylab, skylight, Skywalker, and the list goes on… but let’s focus on two words: “Sky” and “Skype”. Although these are two separate words, according to the Court of the European Union they are similar enough to prevent Microsoft from registering “Skype” as a trade mark.

The IT giant from Redmond, Washington ,, from 2011 has been the owner of the “Skype” communication platform, and although it is entitled to appeal the aforementioned decision, it must deal with a difficult problem. Skype is a renowned brand the world over. In 2013, as many as 50 million users were logged on the service at the same time, and in 2010 the total number of users hovered around 660 million. These numbers speak for themselves and are very impressive in the internet world. On the other hand, Skype does not enjoy protection in Europe, which may be a huge opportunity for people to use this mark in their current activities. This dispute, however, does not concern merely the possession of a protection right or not. One should consider the other party to the dispute – British broadcaster “Sky” – will have the opportunity to seek protection intended for trade mark proprietors – including claims to ban and appropriate financial claims.

Recapitulating the above in more serious words, that OHIM (Office for Harmonization in the Internal Market) upheld its position is based on a significant risk that the graphic and trade mark of “Skype” may be confused with the previously registered Community trade mark of “Sky”. Microsoft cannot register its own trademark in the following classes: audiovisual industry, telephony, photographic equipment, computer software and website hosting.

The Court based its decision on interesting arguments. In the English language, in both words (“Skype” and “Sky”) the “y” vowel is pronounced in the same way. Moreover, “pe”, as a kind of addition to “sky”, has virtually no significance. Additionally, the Skype logo is surrounded by clouds, and does not make the designation sufficiently distinctive and refers, to a certain extent, to the sky.

How will this story end? It is hard to anticipate the future rulings of the EU, but there is every probability that at some stage of the proceedings the parties will decide to settle the matter amicably, which in the circumstances of the case would be very rational. It is worth remembering here the notorious battle spanning many years, the dispute between Steve Jobs’ “Apple” and the British “Apple” of the Beatle’s label. The case experienced several setbacks, each time ending in settlements allowing a somewhat peaceful coexistence of the two brands. Considering the level of recognition of “Skype” and “sky”, it seems unlikely that any significant re-branding will take place.

We are curious about your opinion and would appreciate any comments. On this note, below you can see both marks in their graphic form. As the saying goes – the skype’s… sorry … the sky’s the limit!

(file nos.: T-423/12, T-183/13, T-184/13)

#mark similarity #ohim #trademarks

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