Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 16/12/2019

Activated Foods

Fridensborgsvägen 127

SE-170 62 Solna

SUECIA

Application No:	018098713
Your reference:
Trade mark:	Activated Foods
Mark type:	Word mark
Applicant:	Activated Foods Fridensborgsvägen 127 SE-170 62 Solna SUECIA

1. The Office raised an objection on 08/08/2019, pursuant to Article 7(1)(b) and (c) EUTMR 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.

2. The applicant submitted its observations of 11/08/2019, which may be summarised as follows:

• The company name Activated Foods AB is already registered in Sweden.

• The idea of the applicant’s business is to develop products that are based only on activated and spouted crops, nuts, seeds and active substances. Further explanations of the applicant´s activities and involvements in projects are given.

• A similar mark “Active Foods” was accepted by the EUIPO, as well as “Active Nuts”, “Activated Botanicals” and many others. An explanation of this inconsistency is requested.

3. 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.

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.

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).

The Office cannot find anything distinctive about the mark “Activated Foods” in relation to goods/foodstuff that have been activated or contain activated foodstuff.

In the Notice of grounds for refusal proof was given that the expression “activated food/foods” is generic and that the activation of food, especially nuts, seeds and grains, is commonplace. More and more people have become aware of the benefits of eating activated foods. Te soaking proves brekas down enzyme inhibitros whch makes activated foods easier to digest and pele ae awIt has become a

Why to eat ACTIVATED instead of RAW nuts & seeds:

Activated foods are living foods. The soaking process breaks down enzyme inhibitors - kick-starting enzymes and making activated nuts and seeds are much easier to digest.

Activating washes away phytic acid and tannins – both present in non-activated nuts. Phytic acid and tannins are not only bitter, but they can stop the body from absorbing some of the nutrients in nuts.

Monopoly to an already existing gerneric term is obiosly not possible.

The fact that the company name Activated Foods AB is already registered in Sweden where English is not the main language is irrelevant.

As regards the applicant’s argument that a number of similar registrations have been accepted by the EUIPO, according to settled case‑law, ‘decisions concerning registration of a sign as a European Union trade mark … are adopted in the exercise of circumscribed powers and are not a matter of discretion’. Accordingly, the registrability of a sign as a European Union trade mark must be assessed solely on the basis of the EUTMR, as interpreted by the Union judicature, and not on the basis of previous Office practice (15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47; and 09/10/2002, T‑36/01, Glass Pattern, EU:T:2002:245, § 35).

‘It is clear from the case-law of the Court of Justice that observance of the principle of equal treatment must be reconciled with observance of the principle of legality according to which no person may rely, in support of his claim, on unlawful acts committed in favour of another’ (27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 67).

Moreover, the International Registrations “ConnectedRide” and “connected-car” were registered around ten years ago or more when these types of products were uncommon. The Office has also refused a number of applications including the word “Ride” or “Connected”, see among others:

003499662 - Active Drink

016055246 - Active Protein

009998824 - THE ACTIVE HONEY CO.

that clearly re clearly m other than that the mark OAT SPREAD as a whole is descriptive and devoid of any distinctive character in relation to the goods at issue.

• The idea of the applicant’s business is to develop products that are based only on activated and spouted crops, nuts, seeds and active substances. A project called “Tillväxtverket” to reduce malnutrition in Kenya using activated food is further explained.

• A similar mark “Active Foods” was accepted by the EUIPO, as well as “Active Nuts”, “Activated Drink” and many others. An explanation of this inconsistency is requested.

It is true that raw and unprepared oats are dry goods, however, when oats are prepared the texture may indeed be creamy and be used as a spread.

The goods applied for are all kinds of dairy and butter substitutes, undoubtedly made of oats, such as soft cream and butter substitutes in the form of spread (to be put on bread).

Those who use these substitutes will want them to be viable replacements for real dairy products, and would therefore seek out products that seem to imitate the real products in taste and texture etc.

See also examples of generic use of the word combination OAT SPREAD:

Yosa Oat Spread Natural has a lovely taste as it is, but it's also easy to mix with different seasons ingredients, like parsley.

https://www.instagram.com/yosaoat/p/BkmS_lxn-Lw/

As regards the applicant’s argument that a number of similar registrations have been accepted by the EUIPO, according to settled case‑law, ‘decisions concerning registration of a sign as a European Union trade mark … are adopted in the exercise of circumscribed powers and are not a matter of discretion’. Accordingly, the registrability of a sign as a European Union trade mark must be assessed solely on the basis of the EUTMR, as interpreted by the Union judicature, and not on the basis of previous Office practice (15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47; and 09/10/2002, T‑36/01, Glass Pattern, EU:T:2002:245, § 35).

‘It is clear from the case-law of the Court of Justice that observance of the principle of equal treatment must be reconciled with observance of the principle of legality according to which no person may rely, in support of his claim, on unlawful acts committed in favour of another’ (27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 67).

Moreover, the International Registrations “ConnectedRide” and “connected-car” were registered around ten years ago or more when these types of products were uncommon. The Office has also refused a number of applications including the word “Ride” or “Connected”, see among others:

003499662 - Active Drink

016055246 - Active Protein

009998824 - THE ACTIVE HONEY CO.

Therefore the mark OAT SPREAD as a whole simply indicates that the dairy/butter substitutes in question are made of oats and that they can be spread on bread products.

4. For the abovementioned reasons and pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR, the application for European Union trade mark No 018001857 is hereby rejected for all the goods 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.

Cecilia ÅLIN