Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 24/07/2019

RAWIRA LTD

Duntes street 28-107

Riga, LV-1005

LETONIA

Application No:	018029012
Your reference:	Rawira_Slogan
Trade mark:	ENJOY THE SIMPLE
Mark type:	Word mark
Applicant:	RAWIRA LTD Duntes street 28-107 Riga, LV-1005 LETONIA

The Office raised an objection on 11/03/2019 pursuant to Article 7(1)(b) EUTMR because it found that the trade mark applied for is devoid of any distinctive character, for the reasons set out in the attached letter.

The applicant submitted its observations on 07/05/2019, which may be summarised as follows:

1- The sign has been accepted by the Ukrainian Institute of intellectual Property.

2- The applicant suggests the amendment of the mark applied for into RAWIRA ENJOY THE SIMPLE.

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.

After giving due consideration to the applicant’s arguments, the Office has decided to maintain its objection.

General remarks

Pursuant to Article 7(1)(b) EUTMR, EU trade marks which are devoid of any distinctive character, i.e. trade marks that are not capable of distinguishing the goods or services specifically applied for by one undertaking from those of other undertakings, shall not be registered (15/09/2005, C-37/03 P, BioID, EU:C:2005:547, § 60), thus enabling the consumer who purchased the product identified with the trade mark to make his decision on the occasion of a subsequent acquisition on the basis of whether he had a positive or negative experience (05/12/2002, T-130/01, Real People, Real Solutions, EU:T:2002:301, § 18).

The distinctive character of a sign must be assessed, first, by reference to the goods or services in respect of which registration is applied for and, second, by reference to the relevant public’s perception of the sign (21/01/2010, C-398/08 P, Vorsprung durch Technik, EU:C:2010:29, § 34 and 09/09/2010, C-265/09 P, α, EU:C:2010:508, § 32).

It is settled case-law that the way in which the relevant public perceives a trade mark is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (05/03/2003, T 194/01, Soap device, EU:T:2003:53, § 42; and 03/12/2003, T 305/02, Bottle, EU:T:2003:328, § 34).

The goods and services at issue are for mass consumption and are mainly aimed at average consumers. The awareness of the relevant public will be that of the average consumer who is reasonably well-informed and reasonably observant and circumspect.

As the mark applied for consists of English words, the relevant public is the average English speaking consumer of the European Union.

Specific remarks concerning the applicant´s observations

1- The sign has been accepted by the Ukrainian Institute of intellectual Property.

As regards the national decision referred to by the applicant, according to case-law:

The European Union trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it is self-sufficient and applies independently of any national system … Consequently, the registrability of a sign as a European Union trade mark must be assessed by reference only to the relevant Union rules. Accordingly, the Office and, if appropriate, the Union judicature are not bound by a decision given in a Member State, or indeed a third country, that the sign in question is registrable as a national mark. (27/02/2002, T 106/00, Streamserve, EU:T:2002:43, § 47).

2- The applicant suggests the amendment of the mark ENJOY THE SIMPLE into RAWIRA ENJOY THE SIMPLE.

For an amendment of a European Union trade mark application to be acceptable pursuant to Article 49(2) EUTMR, two conditions must be met:

- The amendment must serve to correct an error of wording or of copying or an obvious mistake.

- The amendment must not change the mark substantially.

In the present case none of these conditions are met and the applicant´s suggestion must be dismissed.

Conclusion

For the abovementioned reasons, and pursuant to Article 7(1)(b) and Article 7(2) EUTMR, the application for European Union trade mark No 018029012 is hereby rejected.

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.

Jean Marc SCHULLER