The European Court of First Instance has ruled that an exclamation mark cannot be registered as a trademark, denying fashion house Joop!’s appeal of a decision made by the OHIM, the EU trademark office.

On September 7, 2006, the German clothing and perfume retailer applied to register the exclamation mark on its own and inside a rectangle. The court ruled that consumers would not automatically associate exclamation marks with the company and that putting the exclamation mark inside a rectangle simply made it look like a label.

The Court ruled that the marks applied for cannot be considered capable of identifying the commercial origin of the goods which they designate. “The lack of distinctive character arises, inter alia, from the fact that the consumer, including a consumer having a high degree of attention, will not be in a position to infer the origin of the goods designated by relying on a mere exclamation mark, which – as it does not have a graphical design which is peculiar to it and which differs from the standard graphical design – will be perceived rather as mere laudatory advertising or as an eye-catching gimmick,” the Court wrote in a press release. The European Court of First Instance ruled that fashion house Joop! could not register an exclamation mark as a trademark, even when it was enclosed inside a rectangle.

The Court also noted that the documents submitted by JOOP!, through which it sought to demonstrate that the marks applied for have acquired distinctive character through use in the EU, referred only to the German market. “The only evidence submitted consists of three photos of jeans to which a piece of cloth, or a label, is attached showing an exclamation mark,” the press release said. “That evidence is clearly incapable of providing proof of the relevant consumers’ knowledge of the mark applied for before the date on which the application for registration was filed.”