In the hearing it was accepted that s3(1)(b) and (c) were valid objections, so it was accepted that acquired distinctiveness was the key to the decision and in particular in relation to s3(1)(d).

Windsurfing Chiemsee in the ECJ provided the following guidance:

In assessing the distinctive character in respect of which registration has been applied for, the following may be taken into account: the market share held by the mark [100%]; how intensive, geographically widespread and long-standing use of the mark has been [worldwide the largest spectator size]; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations

It might appear on the strength of this that FOL were home and dry.  If on the basis of these factors a significant proportion of the relevant class of persons would identify services as originating from this particular undertaking then the registration requirements are satisfied according to Windsurfing Chiemsee.

A point made by the Hearing Officer / Appointed Person was that in considering the issue it was necessary to avoid the unspoken and illogical assumption that use equals distinctiveness.  This was based on the decision in British Sugar v Robertson.



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