Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 13/09/2018

JOÃO MANUEL MENDEZ CARAMÊS

Av. Columbano Bordalo Pinheiro 50

P-1070-064 Lisbon

PORTUGAL

Application No:	017913716
Your reference:
Trade mark:	MALAR IMPLANT
Mark type:	Word mark
Applicant:	JOÃO MANUEL MENDEZ CARAMÊS Av. Columbano Bordalo Pinheiro 50 P-1070-064 Lisbon PORTUGAL

The Office raised an objection on 15/06/2018 pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR because it found that the trade mark applied for is not eligible for registration, for the reasons set out in the attached letter, which forms an integral part of this decision.

In the present case, the Office maintains that the relevant consumers would perceive the sign as providing information that the goods in Class 10 (medical and veterinary apparatus and instruments, prosthetics and artificial implants) are implants relating to the cheek or cheekbone and apparatus and instruments to deal with them (implant, extract, etc.). The goods in Class 5 (dental preparations and articles, dental preparations and articles, and medicated dentifrices) are dental preparations and articles related to/for the treatment of malar implants. Therefore, the sign describes the kind and intended purpose of the goods in question.

Given that the sign has a clear descriptive meaning, it is also devoid of any distinctive character and therefore incapable of performing the essential function of a trade mark, which is to distinguish the goods or services of one undertaking from those of other undertakings.

Furthermore, in its letter of 15/06/2018 the Office provided information that the sign is used in marketing. Signs that are commonly used in connection with the marketing of the goods concerned are devoid of distinctive character.

The applicant failed to submit observations within the time limit. For the reasons set out in the letter of objection, and pursuant to Article 7(1) (b) and (c) and Article 7(2) EUTMR, the application for European Union trade mark No 017 913 716, ‘MALAR IMPLANT’, is hereby rejected for all the goods claimed:

Class 5 Dental preparations and articles; Dental preparations and articles, and medicated dentifrices.

Class 10 Medical and veterinary apparatus and instruments; Prosthetics and artificial implants.

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.

Monika TOMCZYNSKA