Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 19/09/2019

Halewood International Limited - Legal Dept.

Natalie Brindle

The Sovereign Distillery,

Wilson Road, Huyton Business Park

Liverpool L36 6AD

REINO UNIDO

Application No:	018061720
Your reference:	CHUCKLEBERRYSOUR
Trade mark:	CHUCKLEBERRY SOUR
Mark type:	Word mark
Applicant:	Hawkshead Brewery Limited Staveley Mill Yard Staveley Cumbria LA8 9LR REINO UNIDO

The Office raised an objection on 24/05/2019 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.

The applicant submitted its observations on 16/07/2019, which may be summarised as follows.

1. That beers do not usually come flavoured.

2. That consumers are not likely to think a product is made from a certain material just because it is part or all of the sign used in trade.

3. That beer is not to be considered a fashionable drink and has not changed in millennia.

4. That the word Chuckleberry is an obscure word and that such obscurity therefore is distinctive, as the public will not know it describes characteristics of the goods. Due to the obscurity of the word, it is not even in reputable dictionaries, and registers as a misspelling in Microsoft Word. That there is no Wikipedia reference. The term is allusive at most.

5. That the term is a specialist name for the fruit, proven by the lack of amazon reviews.

6. That only the term Berry would be understood by speakers of English within the union.

7. That the sign is syntactically unusual.

8. That the sign has been registered in the UK.

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 the objection.

The objection is maintained for:

Class-32 Beers.

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).

Taking your arguments in the order they were presented:

1. While it is true that many makers of beer follow the same procedures used for generations, there still exists a large market of strange and unusually flavoured beers that the average beer drinker has been exposed to.

2. While the reasoning used in conjunction with the sign Mango is reasonable for items of clothing, the same reasoning cannot be used in relation to products one ingests. It is reasonable to believe that a consumer does not expect their clothing to be made from Mango fibres just because the brand is Mango, in the case of an ingestible product, the link made between the name of a foodstuff or flavour is stronger and has a more direct descriptive meaning in relation to the product. It is common for food and drink products to include a reference to the flavour and or main ingredient of said products and is, therefore, reasonable to assume that a consumer would make the link between the flavour and goods at hand.

3. Beers, like all other alcoholic drinks, are not immune to marketing and fashionable trends and tend to evolve from generation to generation. At the present moment in time novelty and craft beers are very fashionable and are not limited to the basic flavour or ingredients making up a traditional beer.

4. The term Chuckleberry is a new and novel term, not an obscure term that has been forgotten though lack of use. The fact the word is not in the dictionary does not make this term obscure. There are many words that are understood and used on a daily basis that are not dictionary definitions. It can take many years for a word to be approved and added to a dictionary. While it is true the term Chuckleberry shows up as a spelling mistake in Microsoft Word, this is not enough to prove distinctiveness. The term suggested by Microsoft Word when using the right click of the mouse above the term Chuckleberry, the suggestion given in this case by Microsoft Word is Chuckle Berry.

5 The lack of reviews on the Amazon website is in no way proof that the term is unknown by beer drinkers or that it is a specialist term.

6. While it may be true that Engsh speakers within the European Union may only be familiar with the term berry, the fact remains that in English the term is descriptive of a type of berry.

7. The sign is not that unusual in the world of alcoholic drinks where the term sour often follows the main flavour of the drink or is used as a suffix. It must also be noted that Sour beer is a kind of beer characterised by an intentionally acidic and tart taste.

8. The Office takes note of the UK registration. However, the Office still finds the term describes characteristics in relation to the flavour of the beer. 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. That is so even if such a decision was adopted under national legislation harmonised with Directive 89/104 or in a country belonging to the linguistic area in which the word sign in question originated.

(27/02/2002, T 106/00, Streamserve, EU:T:2002:43, § 47).

The absolute ground for refusal under Article 7(1)(b) and (c) precludes the registration of the sign as a trade mark at least in the English-speaking territories of the European Union (Article 7(2) EUTMR).

Consequently, the application is hereby rejected pursuant to Article 7(1)(b), (c) and 7(2) EUTMR.

The application is 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. 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.

Simon Andrew DAYNES