NEWSLETTER-2019-metin

266 NEWSLETTER 2019 IPC. While the consent document may be submitted at the time of the application, if there is opposition to the Office’s decision, it may be submitted until a decision made concerning the opposition. ‘Signs that consist exclusively, or include as an essential element of signs or indications used by everyone in the trade area, or which serves to distinguish members of a particular professional, vocational or commercial group from others’ shall not be registered as a trade- mark according to Article 5/1-d of the IPC. This article addresses the intention to prevent the creation of monopolies through the registration of a trademark that is commonly used in the field of trade in the name of only one undertaking and to protect the public interest. Through application of this sub-paragraph, it should be examined whether the trademark in question is used by different actors in the related sector. For example, the Court of Cassation stated that ‘FLORİST’ sign, which is intended to be registered for ‘exhibitions and organizations in the field of garden culture, greenhouse and floriculture’ services cannot be registered since it shows the type of service, and includes the name of the occupational group related to that service 3 . However, Article 5/2 of the IPC also covers this sub-paragraph and, if it is proven by the trademark applicant that the sign has gained distinctiveness through its use, it shall not be refused based on Article 5/1-d. As regulated by Article 5/1-e of the IPC, signs that i) consist ex- clusively of the shape or another characteristic which results from the nature of the goods themselves or ii) the shape or other characteristics that are mandatory to obtain a technical result or iii) give substantial value to the goods, shall not be registered as trademarks. For example, as it is stated in the Guideline that since ‘the shape of a banana’ results from the nature of the good itself, it cannot be registered for bananas. Indeed, in the Philips v. Remington decision, the ECJ refused the registration of the shape mark for the three-headed 3 11.CC , E. 2002/5352, K. 2002/10729, 22.11.2002.