Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 26/06/2019

SHERIDANS

Seventy Six Wardour Street

London W1F 0UR

REINO UNIDO

Application No:	018009101
Your reference:	031382-13
Trade mark:	CURVE DIGITAL
Mark type:	Word mark
Applicant:	CATALIS SE Suffolk House, George Street East Croydon CR0 1PE REINO UNIDO

The Office raised an objection on 15/02/2019 pursuant to Article 7(1)(f) 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.

Article 7(1)(f) EUTMR excludes from registration trade marks that are contrary to public policy or to accepted principles of morality. Article 7(1)(f) EUTMR mirrors that of Article 6quinquies(B)(3) of the Paris Convention of 20 March 1883 (as revised at Stockholm on 14 July 1967), which provides for the refusal of
trade mark applications and for the invalidation of registrations where trade marks are ‘contrary to morality or public order’.

A judicious application of this provision necessarily entails balancing the right of traders to freely employ words and images in the signs they wish to register as trade marks against the right of the public not to encounter disturbing, abusive, insulting and even threatening trade marks (decision of 06/07/2006, R 495/2005-G, SCREW YOU, § 14).

In deciding whether a trade mark should be barred from registration on grounds of public policy or morality, the Office must apply the standards of a reasonable person with normal levels of sensitivity and tolerance. If the goods are likely to be advertised on prime-time television or worn in the street with the trade mark prominently displayed, a stricter approach may be justified (decision of 06/07/2006, R 495/2005- G-‘SCREW YOU’, §21).

In the present case, the objectionable goods and services covered by the mark applied for are every day/mass consumption goods and services aimed at average consumers as well as specialised goods and services aimed at a professional public.

Moreover, since the mark CURVE DIGITAL consists of words that will be understood in Romanian, the relevant public by reference to which the absolute ground for refusal must be examined is the Romanian-speaking consumer in the Union (22/06/1999, C-342/97, Lloyd Schuhfabrik, EU:C:1999:323, § 26; and 27/11/2003, T-348/02, Quick, EU:T:2003:318, § 30).

CURVE [plural form of ‘curvă’] ‘whore, tart, slut.’ (information extracted from WordReference Romanian-English Dictionary on 26/06/2019 at http://www.wordreference.com/roen/curvă ).

DIGITAL ‘digital.’ (information extracted from WordReference Romanian-English Dictionary on 26/06/2019 at http://www.wordreference.com/roen/digital ).

As such, the Romanian-speaking consumer would understand the sign as having the following highly offensive, vulgar, and obscene meaning: digital whore.

Furthermore, the relevant public is not limited only to the public to which the goods and services covered by the mark are directly addressed. CURVE equally offends other persons, who are confronted with the sign accidentally without being interested in these goods and services. (see judgment of 26/09/2017, T-266/13, Curve, EU:T:2014:836, §19).

Moreover it can be extremely difficult to ascertain when a sign crosses the boundary from being merely irrelevant or distasteful to being seriously abusive and likely to cause deep offence. Signs which contain slightly rude words or mild sexual innuendo might not be refused, but signs which contain manifestly profane language or depict gross obscenity have no place in the register (decision of 06/07/2006, R 495/2005- G-‘SCREW YOU’, §19).

Consequently, taken as a whole, the mark applied for DIGITAL CURVE is contrary to accepted principles of morality, and shall not be registered within the meaning of Article 7(1)(f) EUTMR and Article 7(2) 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)(f) and Article 7(2) EUTMR, the application for European Union trade mark No 018009101 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.

Carine FORZY