DECISION

of the First Board of Appeal

of 9 January 2017

In Case R 508/2016-1

Primos, Inc.
604 First Street Flora Mississippi 39071 United States of America	Applicant / Appellant

represented by MAGUIRE BOSS, 24 East Street, St. Ives, Cambridge PE27 5PD, United Kingdom

APPEAL relating to European Union trade mark application No 14 103 303

The First Board of Appeal

composed of Th. M. Margellos as a single Member having regard to Article 135(2) and (5) EUTMR, Article 1(c)(2) BoA-RP and Article 10 of the Decision of the Presidium on the organisation of the Boards of Appeal as currently in force, and to the First Board’s Resolution No 3 of 9 March 2012 on decisions by a single Member

Registrar: H. Dijkema

gives the following

Decision

Summary of the facts

1. By an application filed on 20 May 2015, Primos, Inc. (‘the applicant’), sought to register the word trade mark applied for

TRIGGER STICK GEN 2

for the following goods:

Class 9 – Tripods, bipods, and monopods for binoculars, cameras, and telescopes used in outdoor recreation; rests, mounts and stands for photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus, monitoring apparatus, binoculars, cameras and telescopes;

Class 13 – Tripods, bipods, and monopods for firearms used in hunting; rests, mounts and stands for weapons and firearms.

2. On 10 July 2015, the examiner provisionally refused the application on the grounds that the mark applied for did not appear to be eligible for registration under Article 7(1)(b) and (c) EUTMR in conjunction with Article 7(2) EUTMR.

3. The examiner referring to dictionary definitions of ‘TRIGGER’ and ‘STICK’ and an Internet search for the term ‘GEN 2’ of 10 July 2015 pointed out that the relevant English-speaking public, the average consumer or the professional, would understand the mark applied for as meaning ‘the second generation of an activation system in the shape of a stick’. The examiner, therefore, considered that the mark applied for immediately informed consumers without further reflection that the goods in the application were ‘the second generation of remote activation systems in the shape of a stick or attached to a stick for cameras and other optical devices and/or firearms’. Accordingly, the examiner considered that the mark applied for fell within the scope of prohibition in Article 7(1)(c) EUTMR given that the link between the mark and the goods was sufficiently close and the mark applied for conveyed direct and obvious information as to the kind and intended purpose of the goods in question. The examiner added that the impact of the mark on the relevant public would be descriptive in nature, thus eclipsing any impression that the mark could indicate a trade origin. The mark applied for was also found objectionable under Article 7(1)(b) EUTMR.

4. On 6 November 2015, the applicant contested the examiner’s provisional refusal arguing as follows:

• There are no tripods, bipods or monopods on the Internet that are being used as remote activation devices. The examiner is invited to provide examples.

• The suffix ‘-pod’ means foot, which indicates that one end of each leg of a tripod, bipod, or monopod must be on the ground, and the other end will be directly beneath the device being supported. By nature, the goods in question are not remote activation devices: They are not remote. A wireless remote control system or a wireless based system would be used with the connection directly between the mounted device and the remote controller, not the tripod, bipod or monopod.

• Bipods and monopods cannot stand upright without the assistance of the person operating the device connected to it. They are stability aids that minimise movement when activating the device.

• A stick is any long thin piece of wood or an object or piece shaped like a stick. Tripods and bipods are not sticks or shaped like a stick. The objection cannot apply to those goods.

• Should the examiner maintain his objections, the applicant requested the examiner’s view on four alternative amendments that could be made to the specification.

5. On 15 January 2016, the examiner maintained his objections to the mark applied for pursuant to Article 7(1)(b), (c) and Article 7(2) EUTMR. He argued as follows:

• The Office based its analysis on facts arising from practical experience generally acquired from the marketing of general consumer goods which are likely to be known by anyone and are in particular known by the consumers of those goods and was not obliged to give examples of such practical experience.

• Notwithstanding this, the Office cites the internet results below from a search on 15 January 2016. The results display tripods, bipods and monopods which are described as ‘sticks’, for multiple devices, usually smartphones, and which enable the user to take pictures

http://lollipod.co.uk/

http://www.amazon.com/Bluetooth-Accmor-Self-Portrait-Extendable-Monopod/dp/B00RTHU5BG

http://www.hisypix.com/product/wing-selfie-stick-black/

• Practical experience shows that there are ‘selfie-sticks’ which are described as ‘monopods’ and which do not need a wireless connection or device to activate the mounted device.

• By only way of example the Office cites the following internet results of such selfie sticks from a search performed on 15 January 2016.

http://www.amazon.co.uk/Extendable-Selfie-Monopod-Connects-Samsung/dp/B00UU2V2H8

http://www.ebay.co.uk/itm/Selfie-Stick-3-5mm-Jack-Cable-on-Extendable-Pod-for-iPhone-SamSung-Phones-/181794605107

• Therefore, the Office maintains that the relevant public will perceive the sign applied for, ‘TRIGGER STICK GEN 2’, not as a badge of commercial origin but as being descriptive of the kind and intended purpose of the goods for which registration is sought.

• The applicant proposes to amend the specification should the Office maintain the objection. A request for an amendment that is conditional is inadmissible.

• Such a declaration is simply viewed as a suggestion to enable the Office to arrive at an acceptable list of goods and services.

• Furthermore, the Office, as a public body cannot provide professional advice. For such purposes the Guidelines for Examination are publicly available on the Office’s website.

6. On 15 March 2016, the applicant filed an appeal against the contested decision. The statement of grounds of the appeal was received on 13 May 2016 and included the following request for the limitation of the goods to the following:

Class 9 – Tripods, bipods, and monopods for binoculars, cameras, and telescopes used in outdoor recreation; rests, mounts and stands for photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus, monitoring apparatus, binoculars, cameras and telescopes; not including selfie sticks or remote activation devices;

Class 13 – Tripods, bipods, and monopods for firearms used in hunting; rests, mounts and stands for weapons and firearms; not including remote activation devices for weapons or firearms.

7. The appeal was forwarded to the examiner for consideration pursuant to Article 61 EUTMR and the appeal was remitted to the Boards of Appeal.

Grounds of appeal

8. The arguments raised in the statement of grounds may be summarised as follows:

• ‘Tripods, bipods and non-monopod rests’ are not sticks. Although it is accepted that the examples show use of the well-known term ‘selfie stick’ to describe hand-held monopods for attaching to mobile phones or cameras, the evidence does not show that the word ‘stick’ is used as a generic term to describe tripods, bipods or monopods other than selfie sticks. Phrases from the examiner’s examples, such as, ‘selfie stick with tripod stand’, ‘selfie stick w/Tripod’ confirm that selfie sticks and tripods are different things although they can be used in conjunction with each other. It is incorrect to state that tripods and bipods are referred to as sticks.

• Binoculars and telescopes cannot be triggered.

• It is acknowledged that the word ‘selfie stick’ is a well-known term to describe hand-held monopods for attaching to mobile phones or cameras. It appears also from the examiner’s evidence that some selfie sticks can enable a mobile phone or camera to be operated remotely by means of a button on the handle of the selfie stick.

• The goods for use with a firearm do not have a trigger function. The concept of a firearm selfie stick makes no sense. Firearms are not attached to a stick and triggered remotely by a stick. A monopod on which a firearm rests does not act as a trigger. It is simply used for resting a firearm. It is not denied that monopod rests, mounts and stands can be used with forearms, but it is denied that such goods can be used to trigger a firearm.

• Monopod rests, mounts, and stands other than selfie sticks, do not operate as triggering or remote activation devices.

Reasons

9. The appeal complies with Articles 58, 59 and 60(1) EUTMR and Rules 48 and 49 CTMIR. It is, therefore, admissible.

Preliminary remark on the limitation in the appeal

10. For the reasons explained below the limitation requested does not change the outcome that the mark applied for should be refused for the reasons that follow.

Article 7 EUTMR

11. When the Office examines a trade mark application on absolute grounds, it must have regard to all the relevant facts and circumstances and it cannot carry out the examination in the abstract. It must have regard to the characteristics peculiar to the mark and, in the case of a word mark, its meaning, in order to ascertain whether or not any of the grounds for refusal set out in Article 7 EUTMR apply. Since registration of a mark is always sought in respect of the goods or services covered for registration, the question of whether or not any of the grounds for refusal set out in Article 7 EUTMR apply to the mark must be assessed specifically by reference to those goods or services (see, to that effect, inter alia, 12/02/2004, C-363/99, Postkantoor, EU:C:2004:86, § 31 to 35). Regard must be had to the relevant public’s perception of the mark.

Goods at issue

12. The goods in the application in Class 9 are ‘tripods, bipods, monopods for cameras, rests, mounts, stands for binoculars and telescopes’, as well as ‘rests, mounts and stands for all photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus, monitoring apparatus’. The goods in the application in Class 13 are ‘tripods, bipods, and monopods for firearms used in hunting; rests, mounts and stands for weapons and firearms’.

13. A tripod is a structure that is a three-legged support of any kind; esp. a frame or stand with three (diverging) legs, usually hinged at the top, for supporting a camera, compass, or other apparatus. A bipod is a two-legged structure and a monopod is a one-legged structure. Tripods, bipods and monopods are stands, which are used very often as supports when they are used in conjunction with an apparatus. The specification of rests, mounts and stands for all photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus, monitoring apparatus’ thus includes ‘tripods, bipods and monopods for cameras, binoculars, telescopes’. Likewise, ‘rests, mounts and stands for weapons and firearms’ in Class 13 are in the nature of, and include, ‘tripods, bipods, and monopods for firearms used in hunting’.

14. ‘Tripods, bipods, monopods’ are in the ‘nature of rests, mounts and stands’. The applicant, who focuses exclusively in its arguments on the eligibility for the registration of the mark applied for in respect of ‘tripods, bipods and monopods’ does not consider this to be otherwise. The Board, therefore, just as the applicant, addresses the issue of whether the mark applied for is descriptive and lacks distinctive character for ‘tripods, bipods, monopods, as mounts, stands or rests for photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus’ in Class 9 and for ‘weapons and firearms’ in Class 13.

Public targeted

15. The goods in Class 9, that may be used for recreational pastimes or in the household may be of interest to the general public, the goods in Class 13 having regard to their nature as firearms and weapons are primarily of interest to the well-informed specialised public.

16. The relevant public is the public in the United Kingdom, Ireland and Malta since the components of the mark applied for have a meaning in English. The Court has confirmed that a basic understanding of English by the general public, in any event, in the Scandinavian countries and the Netherlands is a well-known fact, and the same applies to Cyprus. Consequently, the relevant public includes, at the very least, the public in those countries as well (09/12/2010, T-307/09, Naturally active, EU:T:2010:509, § 26).

Article 7(1)(c) EUTMR

17. Article 7(1)(c) EUTMR provides that trade marks which ‘consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ may not be registered.

18. It follows from well-established case-law that, by prohibiting the registration of descriptive signs as EUTMs, Article 7(1)(c) EUTMR pursues an aim which is in the public interest, namely that indications or signs which are descriptive of the characteristics of goods or services in respect of which registration is applied for may be freely used by all. That provision therefore prevents such indications or signs from being reserved to a sole undertaking by reason of their registration as trade marks (see 04/05/1999, C‑108/97 & C‑109/97, Chiemsee, EU:C:1999:230, § 25; see also 07/07/2011, T‑208/10, Truewhite, EU:T:2011:340, § 12).

19. In the context of an analysis of whether or not it may be descriptive, the mark must, moreover, be considered as a whole ((19/04/2007, C‑273/05 P, Celltech, EU:C:2007:224, § 78 to 80).

20. Accordingly, for a trade mark which consists of a word or a neologism produced by a combination of elements to be regarded as descriptive within the meaning of Article 7(1)(c) EUTMR, it is not sufficient that each of those components may be found to be descriptive, but the word or neologism itself must also be found to be so (see, by analogy, 12/02/2004, C‑363/99, Postkantoor, EU:C:2004:86, § 96; see also 12/06/2007, T‑339/05, Lokthread, EU:T:2007:172, § 30 and the case-law cited).

21. A trade mark consisting of a neologism composed of elements each of which is descriptive of characteristics of the goods or services in respect of which registration is sought is itself descriptive of those characteristics, unless there is a perceptible difference between the neologism and the mere sum of its parts; this presupposes that, because of the unusual nature of the combination in relation to the goods or services, the neologism creates an impression which is sufficiently far removed from that produced by the mere combination of the elements of which it is composed, with the result that the word is more than the sum of its parts (12/02/2004, C-265/00, Campina Melkunie, EU:C:2004:87, §§ 37 to 41, and 25/02/2010, C‑408/08 P, Color Edition, EU:C:2010:92, § 61 and 62).

22. Where there is a perceptible difference of that kind, a sufficiently direct and specific association cannot be found to exist between the sign and the categories of goods or services in respect of which registration is sought, as is necessary for a finding that the disputed sign is descriptive (see, by analogy, 27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 39, and 20/03/2002, T‑356/00, Carcard, EU:T:2002:80, § 28).

23. It is necessary to examine whether the term ‘TRIGGER STICK GEN 2’ is a term or neologism composed of elements each of which is descriptive for ‘tripods, bipods and monopods, as mounts, stands or rests for photographic apparatus, cinematographic apparatus, optical apparatus, measuring apparatus, detecting apparatus’ in Class 9 and for ‘weapons and firearms’ in Class 13 or of essential characteristics of those goods, and to assess whether that term or neologism itself has such descriptive character.

24. ‘GEN 2’ is clearly the abbreviation for ‘GENERATION 2’ meaning second generation. The term ‘GENERATION’ refers to a ‘A stage in the development of a type of product or technology’ and the recognised stage is designated by an accompanying numeral – first, second, third … and so on (see The New Shorter Oxford Dictionary at http://www.oed.com/). Contractions of words that are long are not uncommon in the marketing of products. The relevant pubic will, therefore, have little difficultly in understanding immediately that ‘GEN 2’ refers to the second stage in the development of the products in the application. The applicant focuses exclusively on the words ‘TRIGGER STICK’ and does not argue to the contrary.

25. In English the term ‘stick’ is commonly ‘applied to various implements, either of the shape of a stick, or serving purposes for which a stick was originally used (see The New Shorter Oxford Dictionary at http://www.oed.com/). That dictionary lists numerous examples of the use of the word ‘stick’, including in particular the colloquial use of that term meaning ‘legs’. Traditionally in the basic sense a wooden stick was used as a mount, stand or rest. Nowadays, this being the case, any type of mount, stand or rest with legs could be understood as a stick-like object or implement. The relevant English-speaking public would not find the term ‘stick’ unusual for mounts, stands, rest, tripods, bipods or monopods all of which essentially stand on one or more legs or in a stick-like manner.

26. A trigger is a ‘movable catch or lever the pulling or pressing of which sets some force or mechanism in action’. Thus in photography, a trigger is provided for releasing the shutter. In a firearm, a trigger is a small steel catch which, on being ‘drawn’, ‘pulled’, or ‘pressed by the finger, releases the hammer of a gun-lock. Hence to pull a trigger, to fire a gun’. It is used as the first word in very many compounds such as ‘trigger release’ in photography for as the exposure is made by pneumatic or trigger release; ‘trigger-switch’; ‘trigger finger’ for the forefinger of the right hand, with which the trigger of a firearm is pulled. There is nothing unusual about the word trigger ‘for weapons, forearms’ or for ‘photographic apparatus, cinematographic apparatus’ or indeed for ‘optical apparatus, measuring apparatus, detecting apparatus’ which all, too, may require the use of a lever or catch to set some force or mechanism for capturing an image, setting the exposure of the image, or for detecting, capturing or measuring data.

27. Moreover, in English there are many compound words formed by two words in which ‘TRIGGER’ is the first word (see examples in (see The New Shorter Oxford Dictionary at http://www.oed.com/). There is, therefore, nothing unusual about the structure of the contested mark for the English-speaking public.

28. Accordingly, the English speaker will understand ‘TRIGGER STICK GEN 2’, as referring to the second stage of the development of an implement that resembles the form of the shape of a stick or with legs that has a catch or level, the pulling or pressing of which sets some force or mechanism in action.

29. The request for the limitation of ‘not including selfie sticks’, does not overcome the objection. Whilst it is true that the examples given in the contested decision refer to ‘tripods, bipods, monopods serving as mounts, rests or stands for phones’, they nonetheless remain pertinent for structures or frames for apparatus not intended for ‘selfies’. As has been seen above, the term ‘stick’ can be applied to any implement that can stand on one or more legs, as likewise, the term ‘TRIGGER’ which can apply to any apparatus containing a mechanism that can be triggered by a catch or lever.

30. The function of ‘rests, mounts and stands, which include tripods, monopods and monopods’ is, as the applicant argues, to support many types of apparatus or to enable apparatus to be mounted on, or rested on, them. They are not in the nature of ‘remote activation devices’. The limitation of ‘not including remote activation devices’ is, therefore, not meaningful and is incongruous since by their nature those goods do not operate a ‘remote’. Whilst it is regrettable that the examiner used the wording ‘remote activation systems’, as is apparent from the examples and the fact that in the contested decision he acknowledged that they did not need a wireless connection, the examiner clearly had in mind goods that had the capability of activating the mounted device.

31. An inherent purpose of the goods in question is to facilitate the functioning of the apparatus in question. With advancements in technology, they are increasingly multifunctional. The addition of ‘GEN 2’ provides a clear reference to the second stage in the development of the technology. Most devices and accessories in the electronics field nowadays incorporate smart technology. Thus it is feasible that rests, mounts and stands, which include tripods, monopods and monopods embody ‘smart’ features, such as the ability to trigger, that is the ability to activate, set some force or mechanism in action (see, the examiner’s example of the remote control functionality of the extendible monopod in http://www.amazon.com/Bluetooth-Accmor-Self-Portrait-Extendable-Monopod/dp/B00RTHU5BG with Bluetooth Remote Shutter for IOS and Android phone; the extendible monopod/ tripod which can be paired with the Hisy remote to go hands free http://www.hisypix.com/product/wing-selfie-stick-black/).

32. Indeed, the object of the goods in the application in Class 9 may be to enhance the performance capabilities of the apparatus in question, such as, the release of the shutter in the camera or in the video camera, sharpen the image viewed in the binoculars or the telescope, or detect and measure the distance of the object viewed. This can be facilitated by ‘smart’ features. This attribute can clearly be observed in the examples that the examiner provided in the contested decision (of the lollipod that ‘enables you to push the limits of your chosen genre’ in http://lollipod.co.uk/).

33. The purpose of firearms and weapons is to fire or shoot a bullet. Mounts, rests and stands of all kinds with one, two or three legs are used by field shooters and hunters and provide a forward rest, reduce motion and fatigue, and permit, thereby, an accurate shot. They, thus, provide stability and precision in shooting over greater distances or in adverse weather conditions. They may also serve as a learning tool for novice shooters and trainees. Learning to place a bullet with precision under hunting conditions takes practice. The mark applied for is a plain and straightforward indication that the weapons and firearms in the application are mounts, stands and rests that turn a mediocre trigger shot into a shot of a competent marksman, whether the target is close or far away: that the applicant’s goods are shooting sticks that the operator can rest on or on which a gun or a firearm can be mounted on or on rest on, which are able to activate the trigger or enhance the trigger.

34. The relationship between the goods in the application and the meaning of the mark applied for is, therefore, direct and close. The mark applied for consists of elements, all of which are descriptive of the goods in respect of which registration is sought and the particular stage of the technology that they embody. The relevant public will have no difficulty in comprehending that the mark applied for designates the kind and intended purpose of the content of the ‘rests, mounts and stands, tripods, monopods and monopods’ on which the apparatus, firearm or weapon is mounted, rests or stands on, namely, that they incorporate or their purpose is to enhance or activate the performance of the apparatus in a new way than previously. The mark applied for consists of two elements, both of which are descriptive of the nature and intended purpose of the goods in respect of which registration is sought. The combination does not create an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed.

35. The limitation ‘not including selfie sticks or remote activation devices’ in Class 9 and ‘not including remote activation devices for weapons or firearms’ in Class 13 does not change the above outcome. The mark applied for remains objectionable for all types of mounts, stands and rests and not merely for selfie sticks. The term stick can embrace an implement that has legs or a stick-like frame. Furthermore, though mounts, stands and rests of all kinds are not by their nature ‘remote’ devices’, they may nonetheless embody smart technology features that confer on them multi-functional capabilities that enable them to function in a more integrated manner with the apparatus which are mounted on them, and whose features can be improved on to incorporate another generation of technological developments.

36. The examiner was, therefore, right to reject the mark applied for as descriptive pursuant to Article 7(1)(c) EUTMR for the goods.

Article 7(1)(b) EUTMR

37. Distinctive character within the meaning of Article 7(1)(b) EUTMR means that the mark applied for must serve to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking, and thus distinguishing the goods or services from those of other undertakings (21/10/2004, C-64/02 P, Das Prinzip der Bequemlichkeit, EU:C:2004:645, § 33 and 07/10/2004, C-136/02 P, Torches, EU:C:2004:592, § 29)

38. Distinctiveness has to be assessed by reference to the relevant public to whom the claimed goods are directed (21/10/2004, C-64/02 P, Das Prinzip der Bequemlichkeit, EU:C:2004:645, § 43), which, as has been stated above, is the public whose level of attentiveness is higher than average.

39. Moreover, it is established case-law that the fact that the relevant public is a professional one cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is true that the degree of attention of that public is, by definition, higher than that of the average consumer, it does not necessarily follow that a weaker distinctive character of a sign is sufficient where the relevant public is specialist (12/07/2012, C-311/11 P, Wir machen das Besondere einfach, EU:C:2012:460, § 48).

40. The notion of general interest underlying Article 7(1)(b) EUTMR is indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him/her, without any possibility of confusion, to distinguish the product or service from others which have another origin (08/05/2008, C-304/06 P, Eurohypo, EU:C:2008:261, § 56 and 15/09/2005, C-37/03 P, BioID, EU:C:2005:547, § 60).

41. The marks referred to in Article 7(1)(b) EUTMR are, in particular, those which do not enable the relevant public to repeat the experience of a purchase, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition of the goods or services concerned (27/02/2002, T‑79/00, Lite, EU:T:2002:42, § 26).

42. There is nothing vague or unusual about the mark applied for in relation to the goods in question. The mark applied for is clearly banal for the goods in the application which are inherently in the nature of structures with legs or stick-like characteristics, the purpose of which is to provide stability from which the mechanism on the apparatus can be triggered with precision and efficacy.

43. The semantic content of the mark applied for thus indicates to the relevant public a positive characteristic of those products, relating to their market value, inasmuch as the expectation on the market is that mounts, stands, rests, tripods, bipods, and monopods provide stability and precision in the operation of the trigger mechanism that reflects the latest technological advancements. The attentive professional public will accordingly perceive the mark applied for as the designation of the kind and intended purpose of the tripods, bipods, monopods, and other mounts, rests and stands in general, the purpose of which is necessarily to enhance the operation of the apparatus with which they are used. There is no element which would allow the view to be reached that the mark applied for is unusual or might have its own meaning which, in the perception of the relevant public, distinguishes the goods offered by the applicant from those of a different commercial origin.

44. In the overall assessment, the combination of the elements of the sign applied for is not capable of performing a trade mark function. The word component has a plain meaning and is not an arbitrary or fanciful expression in relation to the contested goods. The word combination ‘TRIGGER STICK GEN 2’ lacks any original sequence or structure. The term ‘TRIGGER’ is commonly used in very many compound words in the English language in the weapons and armaments field as well as in the photographic and cinematographic field. By extension, that term is equally of relevance to goods in the detection and measurement field which may require stability for the capture and measurement of other data. The addition of ‘GEN 2’ adds nothing more and conveys no more than the banal message that the products incorporate the second generation of technology that provides stability and precision in the operation of the trigger mechanism. Therefore, considered in its entirety the sign at issue has to be considered as being devoid of distinctive character.

45. The mark applied for would not trigger, in the minds of the relevant public, a cognitive process or require an interpretative effort on their part to constitute anything more than a mere indication of the kind and intended purpose of the goods in question. The relevant public will not tend to perceive in the sign any particular indication of commercial origin. The mark applied for clearly lacks distinctive character.

46. Thus, the appeal is accordingly dismissed.

Order

On those grounds,

THE BOARD

hereby:

Dismisses the appeal.

Signed Th. M. Margellos

Registrar: Signed H.Dijkema