Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 10/06/2019

SAMSON & PARTNER Patentanwälte mbB

Widenmayerstr. 6

D-80538 München

ALEMANIA

Application No:	017979507
Your reference:	S6301002EMM00Hd
Trade mark:	SIMPLEDIFFERENTIAL
Mark type:	Word mark
Applicant:	SimpleTherapy, Inc. 39180 Farwell Drive Suite 201 Fremont California 94538 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 26/03/2019 pursuant to Article 7(1)(b), (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 took the view that the relevant English-speaking consumer, namely a professional in the field of medicine, would not perceive the sign as a badge of origin, but as information that the services concerned are provided with use of a simplified differentiation diagnosis process, i.e. presumably quick differential analysis, perhaps as part of a preliminary examination. A more simplified assessment can be carried out when the symptoms presented point directly to a certain illness so there is no need to go through a longer set of tests to rule out other illnesses etc. Therefore, the sign describes the kind, nature, methodological approach characteristics and intended purpose of the services 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.

It has to be pointed out that the use of conjoined expression, when the words composing the sign are not separated by the space, does not bring any distinctiveness to the sign. Consequently, taken as a whole, the sign for which protection is sought is descriptive and devoid of any distinctive character, and is not capable of distinguishing the services to which an objection has been raised within the meaning of Article 7(1)(b) and (c) and Article 7(2) EUTMR.

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 Office has not received any observations within the specified time limit. Consequently further argumentation is superfluous and the application is rejected for the reasons as stated in the above notice pursuant to Article 7(1)(b), (c) and 7(2) EUTMR for all the 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.

Jiri JIRSA