Refusal of an application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 16/06/2020

NLO Shieldmark B.V.

P.O. Box 29720

2502 LS The Hague

The Netherlands

Application No	18192419
Your reference	T3086545EM
Trade mark	COPPER FORTE
Mark type	Word mark
Applicant	Dopharma Research B.V. Zalmweg 24 4941 VX Raamsdonksveer The Netherlands

Procedure

The Office raised an objection on 12 March 2020 pursuant to Article 7(1)(b) and Article 7(1)(c) as well as Article 7(2) EUTMR, because it found that the sign 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 provisional refusal was motivated thus:

Descriptiveness (article 7(1)(c) EUTMR)

5

Veterinary-pharmaceutical products.

The average consumer’s level of attention is likely to vary according to the category of goods or services in question.

In the present case, the objectionable goods covered by the mark applied for, are aimed at professionals, either vets or farmers. The applicant produces medicine for animals and specializes according to its website in:

The level of attention of the relevant consumer will be high, since the health of the animal is at stake.

Moreover, since the word sequence “COPPER FORTE” consists of English words, the relevant public with reference to which the absolute grounds for refusal must be examined is the English-speaking consumer in the Community. Consumers with a reasonable/good command of the English language can not only be found in the UK, Ireland, Malta, Cyprus, where English is an official language, but also in The Netherlands, Finland, Sweden and Denmark.

“COPPER” in its definition of the metal is self-explanatory.

The word “FORTE” appears in the dictionary as “strong point”, or “strong, loud music”, but the general definition of “strong” in all its meanings, directly derived from the Latin word “fortis” is well-known to medically trained staff, such as vets. In this case the “forte”-part indicates the high level of copper in the medicine and the strong effects it will have on the animal.

For the purposes of assessing descriptiveness, it must be determined whether the relevant public will make a sufficiently direct and specific association between the expression and the goods for which registration is sought.

The sign “COPPER FORTE” informs the relevant, knowledgeable and over-averagely attentive consumers in the simplest manner that the goods of class 5 are medicines for animals with a copper deficit. The word “FORTE” indicates that the copper shots contain a high level of copper. Random examples taken from an internet search performed on 10 March 2020, prove that this type of medicine exists. The results were included in the objection letter.

Lack of distinctive character (article 7(1)(b) EUTMR)

According to the case-law of the Court of Justice, the fact that a sign is composed of generic words that inform the public of a characteristic of the goods/services leads to the conclusion that the sign is devoid of distinctive character (judgment of 19 September 2002, C-104/00 P, EUIPO ./. Deutsche Krankenversicherung [COMPANYLINE], ECLI:EU:C:2002:288, § 21).

This is clearly applicable to the present case. See also Judgment of the Court of Justice dated 12 February 2004, C-265/00 Benelux-Merkenbureau ./. Campina Melkunie B.V. [BIOMILD], ECLI:EU:C:2004:87, § 19.

Decision

The applicant failed to submit observations within the time limit (17 May 2020). For the reasons set out above (in the letter of objection) and pursuant to Article 7(1)(b) and Article 7(1)(c) as well as Article 7(2) EUTMR, application No 18192419 “COPPER FORTE” is hereby rejected for all goods:

5

Veterinary-pharmaceutical products.

Because the applicant chose to refrain from filing a reply, there is no need for the Office to bring forward any new points of view or arguments. Reference is made to the arguments in the letter of 12 March 2020.

How to appeal

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.

Robert KLIJN BRINKEMA