Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 17/07/2020

ARCADE & ASOCIADOS

C/ Isabel Colbrand, 6 - 5ª planta

E-28050 Madrid

ESPAÑA

Application No:	018185906
Your reference:	13009
Trade mark:	EarSet
Mark type:	Figurative mark
Applicant:	Beijing Sabine Technologies Ltd 12A-3B, 12th Floor, Block B, 28th Xinxi Road, Haidian District BEIJING REPÚBLICA POPULAR DE CHINA

The Office raised an objection on 19/03/2020 pursuant to Article 7(1)(b, 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 sign you have applied for is ineligible for registration under Article 7(1)(b, c) and Article 7(2) EUTMR, because it is devoid of any distinctive character in relation to the goods for which protection is sought.

In the present case, the relevant consumers would perceive the sign as providing information that the goods are either earphones of various types to listen to sounds or different audio/video recording, transmitting, emitting and reproducing, teaching apparatuses which all come in a set, i.e. in a pair of similar devices which are then attached to, connected to or related to ears. Therefore, the relevant consumer, notwithstanding certain stylisation elements consisting of a the words being depicted in a regular typeface, in a conjoined form, whereas the letters E of the word ear and S of the word set are depicted in capital letters, would perceive the sign as providing information about the kind, using method and intended purpose of the goods in question.

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.

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, c) and Article 7(2) EUTMR, the application for European Union trade mark No 18185906 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.

Erkki Münter