Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 29/05/2020

Patendibüroo KÄOSAAR OÜ

Tähe 94

EE-50107 Tartu

ESTONIA

Application No:	018176521
Your reference:	K13527
Trade mark:	RiceStraws
Mark type:	Figurative mark
Applicant:	NLYTECH BIOTECH SDN. BHD. PENANG SME CENTRE, L2-7A, PLOT 105, HILIR SUNGAI KLUANG 5, BAYAN LEPAS INDUSTRIAL PARK PHASE 4 BAYAN LEPAS, PENANG 11900 MALASIA

The Office raised an objection on 04/02/2020 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.

The goods to which this objection applies are:

Class 21 Drinking straws.

Descriptiveness

The assessment of descriptiveness is based on how the relevant consumer would perceive the sign in relation to the goods and services for which protection is sought. In the present case, the relevant English-speaking consumer would understand the sign as having the following meaning: Rice Straws.

The abovementioned meaning of the words Rice and Straws composing the trade mark can be supported by the following dictionary references:

Rice ‘A cereal grass (Oryza sativa) that is cultivated extensively in warm climates for its edible grain.’ (information extracted from The Free Dictionary on 03/02/2020 at https://www.thefreedictionary.com/rice).

Straws (n.pl.) ‘A slender tube used for sucking up a liquid.’ (information extracted from The Free Dictionary on 03/02/2020 at https://www.thefreedictionary.com/Straws).

In the present case, the relevant consumers would perceive the sign as providing information that the goods are edible drinking straws made of rice. Therefore, the relevant consumer, notwithstanding certain figurative elements consisting of an ear of rice below the wording ‘RiceStraws’ in stylized font, would perceive the sign as providing information about the kind and intended purpose of the goods in question.

Moreover, the figurative element reinforce the descriptiveness of the mark and the stylization of the word element is not enough to render the mark distinctive.

Lack of distinctiveness

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.

Consequently, taken as a whole, the sign for which protection is sought is descriptive and devoid of any distinctive character, and is not capable of distinguishing the goods to which an objection has been raised within the meaning of Article 7(1)(b) and (c) and Article 7(2) EUTMR.

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 018176521 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.

Carine FORZY