Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 19/09/2019

CABINET PLASSERAUD

66, rue de la Chaussée d'Antin

F-75440 Paris Cedex 09

FRANCIA

Application No:	018029111
Your reference:	GKL/CCO/TM138362EU00
Trade mark:	MEGAPIXEL VR
Mark type:	Word mark
Applicant:	H2VR HoldCo, Inc. 340 S. Lemon Avenue Walnut California 91789 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 12/04/2019 pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR because it found that the trade mark applied for is descriptive and devoid of any distinctive character, for the reasons set out in the attached letter.

The applicant submitted its observations on 12/06/2019, which may be summarised as follows.

1. The term “Megapixel” is not commonly used in the field of the goods and services for which protection is sought, namely in the field of display and lighting devices. First of all, the term “MEGAPIXEL” is mainly used to describe the capture quality of a camera and display devices describe their quality in terms of resolution or “pixel pitches”. Secondly, lighting devices have no relation with megapixels in terms of graphic resolution.

2. The relevant consumers are not the public at large but rather the professional public in the field of displays and lighting equipment, who will not see any relation between the word “Megapixel” and the goods and services claimed.

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.

Under Article 7(1)(c) EUTMR, ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ are not to be registered.

It is settled case-law that each of the grounds for refusal to register listed in Article 7(1) EUTMR is independent and requires separate examination. Moreover, it is appropriate to interpret those grounds for refusal in the light of the general interest underlying each of them. The general interest to be taken into consideration must reflect different considerations according to the ground for refusal in question (16/09/2004, C‑329/02 P, SAT/2, EU:C:2004:532, § 25).

By prohibiting the registration as European Union trade marks of the signs and indications to which it refers, Article 7(1)(c) EUTMR

pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks.

(23/10/2003, C‑191/01 P, Doublemint, EU:C:2003:579, § 31).

‘The signs and indications referred to in Article 7(1)(c) [EUTMR] are those which may serve in normal usage from the point of view of the target public to designate, either directly or by reference to one of their essential characteristics, the goods or service in respect of which registration is sought’ (26/11/2003, T‑222/02, Robotunits, EU:T:2003:315, § 34).

After giving due consideration to the applicant’s arguments, the Office has decided to waive the objection for the following services:

Class 42 Design services for others pertaining to lighting equipment and systems in permanent or temporary architectural, theatrical, entertainment, commercial, and/or residential applications; lighting design technology specification services pertaining to permanent or temporary architectural, theatrical, entertainment, commercial and/or residential applications; technology specification services pertaining to permanent or temporary architectural, theatrical, entertainment, commercial and/or residential applications; consulting services for others in the field of project management of LED display installation projects and modular video display installation projects.

The objection is maintained for the remaining goods and services.

1. As regards the applicant’s argument that the term “Megapixel” is not a term usually used in the field of the goods and services claimed, the Office asserts that the term “Megapixel”, whilst being commonly used in the photographic field, can also be of relevance in the field of LED display panels. This term is used, as a unit, to express both (i) the number of image sensor elements of digital cameras or and (ii) the number of display elements of digital displays (such as “Modular LED display panels”, “LED video walls” or “LED displays” among other goods claimed).

In this regard the Cambridge Dictionary defines Megapixel as follows:

https://dictionary.cambridge.org/dictionary/english/megapixel

Consequently, although the goods for which protection is claimed do not directly relate to the capture and reproduction of images, the term “megapixel” is widely used in relation with screen-based display equipment. The Office agrees with the applicant’s statement that “pixel pitch” indicates the amount of space between two (LED) pixels. However, in terms of resolution (of a display apparatus, etc.) since it refers to the number of pixels displayed on the screen, the resolution may be measured in terms of total pixel count which may be expressed in megapixels...

Furthermore, computer screen displays with high resolution may also be referred to in terms of Megapixels with the characteristics of the display in question being described as: “2,880×1,800 resolution (5.18 Megapixels) and 220 pixels per inch” (Information extracted on 02/09/2019 at https://thefutureofthings.com/4844-new-macbook-pro-retina-with-5-megapixel-display/ ).

Given that Megapixel is a term that will be used in relation to ultra-high-resolution display screens, and given that such goods may be Virtual Reality display screens (allowing one to interactively navigate, rotate and manipulate in three dimensions), the entirely of the expression MEGAPIXEL VR does no more than make reference to ultra-high resolution display apparatus providing the user an immersive 3D Virtual Reality experience, as well as software and operating systems therefor.

In respect of “LED luminous signs” these are regarded as simply another kind of display apparatus (which may be both ultra-high resolution and providing a Virtual Reality experience). Such goods are not “lighting apparatus” as such (which would fall within Class 11 rather than Class 9).

2. The applicant essentially argues that the relevant consumer is not the public at large but the professional public in the field of displays and lighting equipment. First of all, the verbal elements composing the sign (“Megapixel” and “VR”) are words that can be found in ordinary English and do not present any unusual structure that may require the relevant consumer to make any mental step to derive a concrete meaning from the contested sign. The word ‘Megapixel’ with the meaning ‘a million pixels’ (See Oxford English and Merriam Webster Dictionary references in the previous notification made by the Office) is in fact used frequently in highly technical contexts, including contexts not so far removed from the appellant’s own field of business activity, namely LED displays and design services related thereto. Additionally, as the relevant public is a specialised one, the consumers will have the sufficient knowledge to immediately grasp the meaning of the word “Megapixel” and derive a descriptive meaning vis a vis the objected goods and services. Consideration of the relevant market might prove to be a decisive factor in a situation where the word mark is seen to be borderline, which is plainly not the case here since the sign has no additional element (s) – word, figurative or colour – capable of imparting distinctive character to the sign as a whole.

In conclusion, as a whole, the expression resulting from the mere combining of a descriptive term (Megapixel) and non-distinctive element (the abbreviation “VR” signifying Virtual Reality), without the addition of any other elements, is likely to be perceived by the public only as a technical reference that might be used by any given display manufacturer to refer to a category of high resolution Virtual Reality displays, and not as a sign being capable of distinguishing the goods and services of one undertaking from those of other undertakings.’

It is acknowledged that the mark has no clear descriptive meaning in relation to lighting design in Class 42. To the extent the mark covers such services the application may be accepted.

For the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) and Article 7(2) EUTMR, the application for European Union trade mark No 18 028 599 is hereby rejected for the following goods and services:

Class 9 Modular LED display panels; LED video walls; LED luminous signs for commercial usage, LED displays for commercial use; processors for providing digital signals to LED displays; LED display multi-media operating systems for commercial use, namely, media content player devices that play both pre-recorded and live video, stills, graphics, animation, and other digital imagery; LED display controllers that process digital signals to the display and communicate bi-directionally with the LED display, allowing for pixel level color, brightness, and luminance control and display performance diagnostics; systems composed of computer hardware, software, and network connection hardware for configuring, controlling, and managing media presentations on LED video walls; modular video display panels; video display walls; luminous video signs for commercial usage, video displays for commercial use; processors for providing digital signals to video displays; video display multi-media operating systems for commercial use, namely, media content player devices that play both pre-recorded and live video, stills, graphics, animation, and other digital imagery; video display controllers that process digital signals to the display and communicate bi-directionally with the video display, allowing for pixel level color, brightness, and luminance control and display performance diagnostics; systems composed of computer hardware, software, and network connection hardware for configuring, controlling, and managing media presentations on video display walls.

Class 42 Video display design services; design services for others pertaining to video equipment and systems in permanent or temporary architectural, theatrical, entertainment, commercial, and/or residential applications.

The application may proceed for the remaining 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.

Richard THEWLIS