Refusal of application for a European Union trade mark

(Article 7 EUTMR and Rule 11(3) EUTMIR)

Alicante, 02/12/2016

BJERKÉNS PATENTBYRÅ KB

Box 128

SE-721 05 Västerås

SUECIA

Application No:	015333206
Your reference:	401740EU
Trade mark:	FARM TO MARKET
Mark type:	Word mark
Applicant:	Texas Smoke House AB Instrumentvägen 45 SE-12653 Hägersten SUECIA

The Office raised an objection on 18/04/2016 pursuant to Article 7(1)(b) EUTMR and Article 7(2) EUTMR because it found that the trade mark applied for is devoid of any distinctive character, for the reasons set out in the attached letter.

The applicant requested an extension of the time limit and submitted its observations on 27/07/2016, which may be summarised as follows:

1. The mark is distinctive as a word mark.

2. If the objection to the mark as a word mark is maintained, the applicant wishes to have it assessed as a slogan.

Pursuant to Article 75 EUTMR, it is up to the Office to take a decision based on reasons or evidence on which the applicant has had an opportunity to present its comments.

After giving due consideration to the applicant’s arguments, the Office has decided to maintain the objection.

The mark is distinctive

Contrary to the applicant’s argument, the goods and services for which registration is sought are everyday consumption and mass consumption goods and services as stated in the notice of grounds for refusal. Even though the goods and services could also be used by a professional public, the Office is of the opinion that the goods and services are mainly aimed at average consumers.

The applicant argues that the words ‘farm’ and ‘market’, considered individually, have sufficient distinctive character for some of the goods in Class 30 and all of the services in Class 43 for which registration is sought.

Since the trade mark at issue is made up of several components (a compound mark), for the purposes of assessing its distinctive character it must be considered as a whole. However, this is not incompatible with an examination of each of the mark’s individual components in turn (19/09/2001, T‑118/00, Tabs (3D), EU:T:2001:226, § 59).

The mark ‘FARM TO MARKET’, taken as a whole, indicates that the goods come from a farm and are brought to the market. Contrary to the applicant’s argument, all the goods objected to in Class 30 can be produced on a farm, for example pastries, ice-creams and sauces can be made on the farm using ingredients some or all of which have been produced on the farm, such as milk, flour, eggs, fruits and vegetables. The relevant consumers would perceive the goods as fresh and local, as the mark would indicate that they had come directly from the farm.

Used for the services in Class 43, the mark would indicate to the relevant consumers that the ingredients in the prepared food and beverages served have been bought from a farmers’ market, or that the food and beverages served (e.g. ice-cream and pastries) had been produced by farmers using their own products.

That the expression ‘FARM TO MARKET’ may be a play on the expression ‘farm to market road’ does not alter the fact that the expression is non-distinctive for the goods and services for which registration is sought.

The words ‘farm’ and ‘market’ are, contrary to the applicant’s argument, well known and commonly used words. Furthermore, the omission of the word ‘from’ does not affect the way in which the relevant consumers would perceive the mark. The implicit meaning of the expression is still clear and no consumer would be in doubt that the goods and services originated from a farm and had been brought to the market. The mark in question is therefore devoid of distinctive character.

The mark is a slogan

An assessment of the mark as a slogan would not change the outcome; the mark would still be found to be devoid of distinctive character under Article 7(1)(b) EUTMR.

For the abovementioned reasons, and pursuant to Article 7(1)(b)EUTMR and Article 7(2) EUTMR, the application for European Union trade mark No 15 333 206 is hereby rejected for the following goods/services:

Class 29 Kött, fisk, fjäderfä och vilt; Köttextrakt; Konserverade, frysta, torkade och tillagade frukter och grönsaker; Geléer, sylter, fruktkompotter; Ägg, mjölk och mjölkprodukter; Ätliga oljor och fetter.

Class 30 Kaffe, te, kakao, socker, ris, tapioka, sagogryn, kaffeersättning; Mjöl och näringspreparat tillverkade av spannmål, bröd, konditorivaror och godsaker, glass, honung, sirap; Jäst, bakpulver, salt, senap, vinäger, såser (smaktillsatser); Kryddor; Is, glass, fryst yoghurt och sorbet.

Class 43 Utskänkning av mat och dryck; Utskänkning av mat och dryck i restauranger; Catering; Restaurangtjänster.

The application may proceed for the remaining goods, namely:

Class 30 Bakpulver, salt.

According to Article 59 EUTMR, you have a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

Anja Pernille LIGUNA