Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 01/07/2020

ARCADE & ASOCIADOS

C/ Isabel Colbrand, 6 - 5ª planta

28050 Madrid

SPAIN

Application No:	018180600
Your reference:	12988
Trade mark:	VAPOURLESS
Mark type:	Figurative mark
Applicant:	Zhenjiang Mok Electronic Cigarette Technology Co., Ltd. Inside the Huangxu Private Industrial Park, Xinfeng Town, Dantu District Zhenjiang PEOPLE’S REPUBLIC OF CHINA

The Office raised an objection on 02/03/2020 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.

In the present case, the relevant English-speaking consumer would understand the sign as having the following meaning: ‘devoid of vapour’.

In accordance with the above, the relevant consumers would perceive the sign as providing information that the goods applied for in Class 34 do not produce vapour. Therefore, the relevant consumer, notwithstanding the figurative element consisting of a gray circle with a splintered center that will be perceived merely as a letter ‘o’, would perceive the sign as providing information about the characteristics of the goods in question, i.e. electronic cigarettes and liquid solutions therefor that do not produce vapour.

Given that the sign has a clear descriptive meaning, it is also devoid of any distinctive character

As mentioned above, although the sign for which protection is sought contains a figurative element that confer upon it a degree of stylisation, the nature of these elements is so negligible that they do not endow the trade mark as a whole with any distinctive character. This element do not possess any feature regarding the way in which they are combined that allows the mark to fulfil its essential function for the goods for which protection is sought.

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.

With the above notice (attached) the applicant was given opportunity to submit observations in reply. The Office has not received any observations within the specified time limit. Consequently, further argumentation is superfluous and the application is rejected for the reasons as stated 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 018180600 is hereby 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. 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.

Jack CIEZA PASTOR