Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 05/08/2020

Mr. Ákos Süle, LL.M. (Berlin)

Rungestr. 25

D-10179 Berlin

Germany

Application No:	18234614
Your reference:	usaeu168
Trade mark:	SKTLBB
Mark type:	Word mark
Applicant:	Henan Shangtu Cross-border E-commerce Co.,Ltd. 1701,Bldg.A,Bldg.1,Shenglong Square Intersection of Shangding Rd.&Dongfeng S.Rd. Zhengzhou People’s Republic of China

The Office raised an objection on 14/05/2020 pursuant to Article 7(1)(b) EUTMR because it found that the trade mark applied for is devoid of any distinctive character, for the reasons set out in the attached letters which form an integral part of this decision.

The applicant submitted its observations on 27/05/2020, in which it argued that SKTLBB is an abbreviation for "sky, take love blue, blue". It comes from the quote "The sky takes my love it's blue love to a girl to drive away her blue mood"/ The branding idea will be explained at some point to the consumers, when there will be sufficient attention to the brand. Also, since the targeted consumers are adults who are generally prepared to recognize and remember six letters even without knowing the rationale behind them. On the other hand, even without understanding the meaning of the brand, a six letter acronym is easier to remember than a three letter acronym, as there are simply too many three letter acronyms. Various Amazon links are attached to show that the sign is functioning as a trademark.

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.

After giving due consideration to the applicant’s arguments, the Office has decided to maintain the objection for the reasons set forth below.

The applicant essentially argued that the acronym composing the sign refers to a quote, and also that adults are intelligent enough to remember six letters. However, the Office cannot accept these arguments. First, the applicant has failed to prove that the public in European Union would know and recognize the link between the sign and the quote referred to. In fact, the applicant did not explain what sort of quote this would be or what its source is, and it certainly cannot be considered to be a common fact, either. Second, with regard to the level of education of the relevant public, what matters in the present case is whether or not the public would easily and instantly recall it as a distinctive sign identifying the commercial origin of the goods at issue. In the absence of any meaning or clear reference, the Office maintains that consumers would not perceive the sign as a badge of origin as it would not enable them to repeat the experience of a purchase, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition of the goods or services concerned (27/02/2002, T‑79/00, Lite, EU:T:2002:42, § 26). The applicant failed to provide evidence to the contrary, and the Amazon links attached cannot alter this as they merely show that the applicant has tried to market its products under the sign. However, the mere selling or marketing of a product does not prove that the sign is distinctive or that it complies with the necessary requisites for it to be registered as an EUTM, and in the present case acquired distinctiveness has neither been claimed nor proven (for further detail, see judgment of 12/12/2002, T-247/01, Ecopy, EU:T:2002:319, § 47).

It is therefore maintained that the sign applied for is solely composed of a string of letters forming no words that can be understandable by consumers speaking any of the languages in the relevant territory, thus, the mark does not possess sufficient distinctive value. Therefore, pursuant to Article 7(1)(b) EUTMR, the application for European Union trade mark No 18 234 614 is hereby rejected in its entirety.

According to Article 66(2) EUTMR, you have a right to appeal against this decision which does not terminate the examination proceedings. 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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.

Ferenc GAZDA