Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 20/02/2019

NOVAGRAAF UK

2nd Floor, Renown House, 33-34 Bury Street

London EC3A 5AR

REINO UNIDO

Application No:	017963023
Your reference:	BJMX
Trade mark:	NBSLSD
Mark type:	Figurative mark
Applicant:	AIDIA Life, LLC 18 Aucma Avenue, Laishan District Yantai City, Shandong REPÚBLICA POPULAR DE CHINA

The Office raised an objection on 22/10/2018 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, , would simply be seen by the relevant public as providing information that the goods applied for serve for detection and identification of a Lysosomal storage disease – enzyme deficiencies that interfere with lysosome function, through the test performed shortly after birth of a baby (a new born screening tests). Therefore, the relevant consumer, notwithstanding certain stylised elements consisting of a typeface that is slightly stylised standard font, would perceive the sign as providing information about 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 was given opportunity to submit observation 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. 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 17 963 023 is hereby rejected for all the goods and services 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