Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 06/03/2019

FORRESTERS IP LLP

Rutland House

148 Edmund Street

Birmingham B3 2JA

REINO UNIDO

Application No:	017939322
Your reference:	B26465EM-JCH
Trade mark:
Mark type:	Figurative mark
Applicant:	M-Mover Holdings Limited Airfield Industrial Estate, Moor Farm Road Ashbourne, Derbyshire DE6 1HD REINO UNIDO

The Office raised an objection on 10/10/2018 pursuant to Article 7(1)(b) 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 L110 letter, which forms an integral part of this decision.

The application consists of the figurative mark .

The goods to which this refusal applies are:

Class 7 Machines and apparatus for pulling, pushing, carrying and handling loads; machines and apparatus for movement of goods through warehouses and stores; transport and transporting machines and apparatus; parts and fittings for all the aforesaid goods.

On 07/12/2018, the applicant requested an extension of time to answer the objection raised on 10/10/2018 which was granted on 10/12/2018 till 15/02/2019.

The perception of the relevant public is not necessarily the same for a figurative mark consisting in the shape of a label as it is for a word mark, a figurative mark or a shape mark that does not have that appearance. Although the public is used to recognising the latter marks instantly as signs identifying the product, this is not necessarily so where the sign is indistinguishable from a label commonly used to identify a product in trade.

The appearance of the mark for which protection is sought does not depart significantly from the norms and customs of the relevant sector.

In particular, the sign for which protection is sought consists merely of a combination

of presentational features of a yellow shape recalling a rectangle except on one of its

sides, the shade of yellow recalls the shade commonly used for machines. As a whole, this shape resembles a label and the yellow colour is the yellow colour used for the claimed machines and apparatus. These features would be seen by the relevant consumer as the background of a label not markedly different from the labels used in trade.

The sign applied for will not fulfil its essential function of a mark that is to distinguish the goods claimed from the goods of other undertakings. It will not draw the attention of the relevant consumer who will not be able to remember it in the context of a future purchase. The marks referred to in Article 7(1)(b) EUTMR are, in particular, those that do not enable the relevant public ‘to repeat the experience of a purchase, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition of the goods or services concerned’ (27/02/2002, T‑79/00, Lite, EU:T:2002:42, § 26). This is the case for, inter alia, signs commonly used in connection with the marketing of the goods or services concerned (15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 65).

Therefore, the sign for which protection is sought is devoid of any distinctive character within the meaning of Article 7(1)(b) EUTMR.

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 Article 7(2) EUTMR, the application for European Union trade mark No 17 939 322 is hereby rejected for the following goods:

Class 7 Machines and apparatus for pulling, pushing, carrying and handling loads; machines and apparatus for movement of goods through warehouses and stores; transport and transporting machines and apparatus; parts and fittings for all the aforesaid goods.

The application may proceed for the remaining services.

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.

Brigitte BERNHEIM

Annex: L110 letter dated 10/10/2018.