In Case C-542/07 P Imagination Technologies Ltd v Office for Harmonisation in the Internal Market, an application to register the words PURE DIGITAL for goods and services in Classes 9 and 38, the Court of Justice of the European Communities (Fifth Chamber) confirmed earlier this month that, to overcome the absolute bar to registrability for lack of distinctive character under the Community Trade Mark Regulation, Article 7(1)(b), distinctiveness acquired by use must be acquired by the date of the application and not thereafter. If this were not the case, said the Court:

"... a trade mark which is devoid of any distinctive character at the time when the application for registration is filed might serve as a basis for the application, in the context of opposition proceedings or an application for a declaration of invalidity, of a relative ground for refusal against a second mark whose filing date is after that of the first mark. Such a situation is particularly unacceptable when the second mark already has distinctive character at the time of filing whereas the first has not yet acquired it through use".