In a final attempt Amazing Brands claims that the trademark has acquired distinctiveness. This argument is however also disregarded. The use has been too short and was mostly centered in Flanders. The trademark authorities claim that one can only acquire distinctiveness if this is done in all of the Benelux.
The high court of Brussels, agrees with Amazing Brands in the end. The company produces more than one hundred pieces of evidence to support acquired distinctiveness, going back more than ten years ago.
Clearly in the small niche market of gel- and artificial nails Amazing Brands is a well-known company. For acquired distinctiveness it is not necessary that the perception of a trademark is equally distributed throughout the Benelux territory. Sufficient is that with the use of the trademark a significant part of its target audience is reached. The Benelux authorities therefore had to register the trademark after all.
