Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 01/08/2019

IPSILON

Le Centralis 63, avenue du Général Leclerc

92340 Bourg-la-Reine

FRANCIA

Application No:	018035012
Your reference:	TP005709/MVI/MAC
Trade mark:	PAPERPOT
Mark type:	Word mark
Applicant:	NIPPON BEET SUGAR MANUFACTURING CO., LTD. 12-14 Mita 3‑chome, Minato‑ku TOKYO JAPÓN

The Office raised an objection on 21/05/2019 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.

On 25/06/2019, the applicant requested an amendment of the list of goods and services in which it asked to delete Class 16 and amend Class 21 to ‘cylinders for seedling nursery; plant pots namely seedling nursery pots with continuous cylinder assembly’. The Office, in its letter of 17/07/2019, confirmed the deletion of paper containers in Class 16 and paper plant pots in Class 21. The Office informed the applicant that ‘paper cylinders for seedling nursery, plant pots namely seedling nursery pots with continuous paper cylinder assembly’ could not be amended to ‘cylinders for seedling nursery; plant pots namely seedling nursery pots with continuous cylinder assembly’ because the requested amendment would broaden the scope of protection.

In view of the restriction, the previous objection on absolute grounds has been waived in relation to paper containers in Class 16 and paper plant pots in Class 21. The objection has been maintained in relation to paper cylinders for seedling nursery, plant pots namely seedling nursery pots with continuous paper cylinder assembly.

The Office maintains that the relevant consumers would perceive the sign as providing information that the seedling nursery pots with continuous paper cylinder assembly are pots made of paper. Therefore, the sign describes the kind and material 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 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 18 035 012 is hereby rejected for the following goods:

Class 21 Paper cylinders for seedling nursery, plant pots namely seedling nursery pots with continuous paper cylinder assembly.

The application may proceed for the following goods:

Class 7 Seedling nursery apparatus for transplanting plants.

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.

Stanislava MIKULOVA