Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 26/05/2020

Wai Leung Wu

6 Cradlehall Farm Drive

Inverness

IV2 5GQ

REINO UNIDO

Application No:	018184107
Your reference:
Trade mark:
Mark type:	Figurative mark
Applicant:	Wai Leung Wu 6 Cradlehall Farm Drive Inverness IV2 5GQ REINO UNIDO

The Office raised an objection on 03/02/2020 pursuant to Article 7(1) EUTMR because it found that the trade mark applied for is not eligible for registration under Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR, for the reasons set out in the attached letter, which forms an integral part of this decision.

The Office maintains that, taken as a whole, consumers will not appreciate a trade mark message.

Regarding the goods and services to which an objection has been raised, the Office considers that they belong to both a highly specialised market sector, namely healthcare or animal grooming, and are used by the average consumer. In the present case, the English-speaking consumers, namely both a professional in the field of healthcare or animal grooming and the average consumer, would understand the sign as having the following meaning: fuller skin.

Therefore, the relevant consumers, notwithstanding certain stylised elements consisting of a red standard font, would perceive the sign as an indication of the kind, nature or intended purpose of the goods and services concerned in Class 3, namely that these are different kinds of animal grooming preparations and skincare preparations which help their users to achieve a fuller skin. The different kinds of medical and hygienic preparations and articles in Class 5 serve the same purpose, namely to create a fuller skin for their user. The different kinds of animal grooming services, animal and human healthcare services, human hygiene and beauty care and dermatology services in Class 44 intend to provide their users with a fuller skin.

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 and services of one undertaking from those of its competitors.

The sign for which protection is sought would simply be seen in the relevant market sector as a laudatory expression, the function of which is to communicate a customer service statement. Moreover, in the present case, the relevant public will not tend to perceive any particular indication of commercial origin in the sign beyond the promotional information conveyed, which merely serves to highlight positive aspects of the goods and services in question, namely that they promise with respect to the different kinds of animal grooming preparations and skincare preparations in Class 3 to help their users to achieve a fuller skin. With respect to the different kinds of medical and hygienic preparations and articles in Class 5 the sign promotes that these goods will create a fuller skin for their user. As regards the different kinds of animal grooming services, animal and human healthcare services, human hygiene and beauty care and dermatology services in Class 44 the sign promises to provide their users with a fuller skin.

Although the sign for which protection is sought contains certain figurative elements as indicated above, these elements are so negligible in nature that they do not endow the trade mark as a whole with any distinctive character. Those elements do not possess any feature regarding the way in which they are combined that allows the mark to fulfil its essential function in relation to the goods and services for which protection is sought.

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) EUTMR, the application for European Union trade mark No 18 184 107 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.

Frank MANTEY