Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 13/11/2018

HERRERO & ASOCIADOS

Cedaceros, 1

E-28014 Madrid

ESPAÑA

Application No:	017927202
Your reference:	HA1190/2018
Trade mark:	NIGHT SIGHT
Mark type:	Word mark
Applicant:	Ontel Products Corporation 21 Law Drive Fairfield, New Jersey 07004 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 18/07/2018 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.

The Office maintains that the sign for which protection is sought, ‘NIGHT SIGHT’, would simply be seen by the relevant public as providing information that the goods in Class 9, i.e. eyewear are adapted for vision at night and provide the consumer with the faculty of seeing in the dark or during periods of reduced visibility and, accordingly, eyewear cases specific for said eyewear. 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 objectionable under Article 7(1)(b) EUTMR, as it is 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.

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 17 927 202 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.

Michaela POLJOVKOVA