Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 08/01/2018

AGCO Limited

Andrew White

Abbey Park Stoneleigh

Stoneleigh, Kenilworth CV8 2TQ

REINO UNIDO

Application No:	016943219
Your reference:	TM2626
Trade mark:	BALECREATE
Mark type:	Word mark
Applicant:	AGCO Corporation 4205 River Green Parkway Duluth 30096 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 21/07/2017 pursuant to Article 7(1)(b) and (c) 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 21/09/2017, which may be summarised as follows.

1. The sign must be considered as a whole without being dissected into its component elements. To perform such a dissection, a cognitive process is necessary.

2. When considered as a whole, the sign is only suggestive or allusive in relation to the goods in question.

3. The goods are expensive items that consumers would purchase only after thorough consideration and information. Therefore, the consumer, seeing the mark as a whole, recognises the sign as a badge of origin.

Pursuant to Article 94 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.

1. At all times, the sign in question ‘BALECREATE’ has been considered as a whole. The sign is a compound sign consisting of two words written together; ‘BALE’ and ‘CREATE’. The conjoint word make up a sign with a clear meaning in relation to the goods and that can be understood only as the sum of its two components. The descriptive meaning of this sign is direct and immediate without the need for any cognitive process in the consumer’s mind. The sign must be refused in accordance with Article 7(1)(c) EUTMR.

2. The sign, when seen as a whole, is not only suggestive or allusive but is clearly descriptive in relation to the goods, as explained above. The compound word ‘BALECREATE’ has a meaning that directly explains the intended purpose of the goods, namely that the machines, implements and apparatus and balers will create bales and that the computer hardware, software and electrical equipment are intended for use with machines, implements and apparatus that create bales. The descriptive meaning is directly linked to the goods and will not be seen by the relevant consumer as a mere allusion or suggestion.

3. Even though it might be true that the goods are expensive and that the relevant consumer will be highly attentive and informed at the time of the purchase, this does not mean that the sign is not descriptive in relation to these goods. A potential purchaser, when seeing this sign for the first time, would directly understand its descriptive meaning in relation to the goods. In order to overcome the descriptive and also non-distinctive character and to see this sign as an indicator of trade origin capable of identifying the applicant’s goods, a situation of acquired distinctiveness would be necessary; however this has not been claimed nor proven by the applicant.

Consequently, for the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR, the application for European Union trade mark No 16 943 219 ‘BALECREATE’ is hereby rejected for all the goods claimed.

According to Article 67 EUTMR, you have a right to appeal against this decision. According to Article 68 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.

Elna ISAKSSON