Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 04/12/2017

Innertrak Ltd

133 Faversham Road

Ashford Kent TN24 9DE

REINO UNIDO

Application No:	017102906
Your reference:
Trade mark:	Smart Hoop
Mark type:	Word mark
Applicant:	Innertrak Ltd 133 Faversham Road Ashford Kent TN24 9DE REINO UNIDO

The Office raised an objection on 16/08/2017 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 29/08/2017 which may be summarised as follows.

1. The applicant now realises that the term ‘Smart Hoop’ is too generic for Classes 9 and 28 and asks if the mark would be acceptable in the case of limiting to Class 28.

2. If not, the applicant asks if the mark can be changed to ‘Intertrack Smart Hoop’.

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 observations and questions, the Office has decided to maintain the objection.

The limitation to Class 28 proposed by the applicant is not clear and unconditional and therefore cannot be accepted. In any case, the Office points out that such a limitation to ‘Hoops for exercise’ in Class 28 would not overcome the objection. The words ‘Smart Hoop’ would be seen by the relevant consumer as descriptive for the goods at issue, exercise hoops that could integrate smart technology, as explained in the attached letter.

With regard to the applicant’s question whether the mark can be changed to ‘Intertrack Smart Hoop’, the Office informs that such a change is not possible. The two conditions for allowing a change to a mark once filed are cumulative:

• the mistake must be obvious, and

• the amendment must not substantially change the mark as filed.

In the present case, the change to ‘Intertrack Smart Hoop’ would substantially change the mark as filed and is therefore not permissible.

For the abovementioned reasons and those set out in the attached letter, and pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR, the application for European Union trade mark No 17 102 906 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.

Lynn BURTCHAELL