Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 05/02/2019

ARCADE & ASOCIADOS

C/ Isabel Colbrand, 6 - 5ª planta

E-28050 Madrid

ESPAÑA

Application No:	017962614
Your reference:	11268
Trade mark:	MOTHER TEA
Mark type:	Word mark
Applicant:	UK ITHUN BRAND MANAGEMENT CO., LTD. Flat A1 239 Earls Court Road london SW5 9AH REINO UNIDO

The Office raised an objection on 16/11/2018 pursuant to Article 7(1)(g) 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 took the view that the assessment of deceptiveness is based on how the relevant consumer would perceive the sign in relation to the goods for which protection is sought. As the sign for which protection is sought contains the element ‘tea’, the word “tea” in the sign would clearly be deceptive when used in connection with the goods unrelated to tea, such as coffee, flowers or leaves for use as tea substitutes, etc. in Class 30, because it conveys clear information indicating that the products designated under this sign contain and/or are made of tea, whereas the goods to which an objection has been raised in reality cannot have these characteristics. Therefore, there is a sufficiently serious risk that the relevant public will be deceived as regards the kind of the goods in question.

With the notice the applicant was given opportunity to submit observations in reply. 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.

The applicant failed to submit observations within the time limit. Consequently further argumentation is superfluous. For the reasons set out in the letter of objection, and pursuant to Article 7(1)(g) and Article 7(2) EUTMR, the application for European Union trade mark No 17 962 614 is hereby rejected for the following goods and services:

Class  30 Coffee; flowers or leaves for use as tea substitutes.

The application may proceed for the remaining goods and 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.

Jiri JIRSA