hareRefusal of application for a European Union trade mark

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

Alicante, 26/12/2016

INADAY

PO BOX 336

NL-7500 AH Enschede

PAÍSES BAJOS

Application No:	015481724
Your reference:	MU9V
Trade mark:	MY OWN CHRISTMAS TREE
Mark type:	Figurative mark
Applicant:	Green Team Holding A/S Simmelbrovej 44 DK-7260 Sdr. Omme DINAMARCA

The Office raised an objection on 07/06/2016 pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR because it found that the trade mark applied for is descriptive and devoid of any distinctive character, for the reasons set out in the attached letter.

The applicant submitted its observations on 07/10/2016, which may be summarised as follows:

1. The applicant agrees that the verbal elements are, per se, rather descriptive for the goods in Classes 28 and 31. However, the elements of the sign should not be assessed separately. The verbal elements are shown in a non-standard font and in colour. The shape of the Christmas tree is of a striking and distinctive design. Rounded shapes are not common for Christmas trees, as they are mostly drawn with sharp edges. It is exactly the rounded shapes of the stylised Christmas tree that make the figurative element distinctive. Therefore, the sign as a whole cannot be considered entirely devoid of distinctive character.

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.

With respect to the applicant’s argument regarding the stylisation of the sign, it is true that the sign in question is composed not only of the expression ‘MY OWN CHRISTMAS TREE’ (which, as admitted by the applicant, is descriptive for the goods in question), but also of certain figurative elements (i.e. an image of a Christmas tree and the font and layout of the verbal elements).

The expression ‘MY OWN CHRISTMAS TREE’ is contained within the green outline of a Christmas tree. However, although the depiction of a Christmas tree is stylised, the stylisation is rather simplistic; it does not make the sign any more distinctive and it is not capable of altering the sign’s descriptive nature. The depiction of a Christmas tree merely reinforces the reference to the nature and intended purpose of the goods, namely Christmas trees and their decorations. Therefore, the device is also entirely descriptive of the nature and intended purpose of the goods for which registration is sought, as they are Christmas trees or include Christmas trees or are intended to be used with Christmas trees.

In view of the above considerations, the graphic depiction has only a minimal effect on the overall impression created by the contested trade mark, which, as a whole, conveys obvious and direct information regarding the nature and intended purpose of the goods in question.

In addition, it should be recalled that the way in which the relevant public perceives a trade mark is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (03/12/2003, T‑305/02, Shape of a bottle, EU:T:2003:328, § 34). The goods in the present case target the average consumer, who is deemed to be reasonably well informed and reasonably observant and circumspect. Given that the goods are aimed at the mass market, the degree of attention will not be high, as the goods are not particularly expensive. Taking this into consideration, it is unlikely that consumers would analyse the sign with respect to its elements, such as the rounded edges referred to by the applicant.

Taking into consideration the meanings of the words ‘MY OWN CHRISTMAS TREE’ given in the objection letter of 07/06/2016, the Office maintains that, taken as a whole, the words ‘MY OWN CHRISTMAS TREE’ immediately inform consumers without further reflection that the goods applied for are Christmas trees personalised according to the consumer’s requirements or decorations and will be understood as referring to Christmas trees that may be personalised according to the consumer’s requirements. In this respect, it must be recalled that the use of ‘My’ in trade marks has become increasingly common as a way of marketing goods and services of a personalised nature (see also the German equivalent ‘Mein’ and its common use in commerce as a means to address consumers (10/01/2014, R 2216/2013-4, MEINFERNBUS.DE)). In the Board’s opinion, this growing popularity may be explained, from a marketing perspective, by the fact that personalised or customised goods and services promise to meet the specific needs of the consumer, for which a standard product might not be suitable (13/03/2014, R 2147/2013-1, MYDIET, § 25).

For the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR, the application for European Union trade mark No 15 481 724 is hereby rejected for all the goods claimed.

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.

Sandra KASPERIŪNAITĖ