Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 10/11/2020

AWA Sweden AB

Box 5117

SE-200 71 Malmö

SUECIA

Application No:	018237800
Your reference:	31052677
Trade mark:	NEW GENERATION
Mark type:	Word mark
Applicant:	Falkbolagen AB Stillmansgatan 11 SE-212 25 MALMÖ SUECIA

1. The Office raised an objection on 20/05/2020 pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR because it found that the trade mark applied for is descriptive and devoid of any distinctive character, for the reasons set out in the attached letter.

2. The applicant submitted its observations on 16/07/2020 which may be summarised as follows:

• The goods are limited to ”Köttersättningar i form av korvar, biffar och filéer” (Meat substitutes in the form of sausages, steaks and fillets).

• The wording NEW GENERATION has no relevant meaning in relation to meat substitutes. The word “generation” is used primarily in relation to electronic goods, fashion and music but not in relation to taste and nutrition.

• In relation to the relevant products the mark is well apt to function as a distinctive trademark. The objection should therefore be waived.

3. 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.

The Office waives the objection as regards Article 7(1)(c) EUTMR since the mark may not be considered directly descriptive of the goods applied for, although it is maintained that it is devoid of any distinctive character pursuant to Article 7(1)(b) EUTMR.

Under Article 7(1)(b) EUTMR, ‘trade marks which are devoid of any distinctive character’ are not to be registered.

It is settled case-law that each of the grounds for refusal to register listed in Article 7(1) EUTMR is independent and requires separate examination. Moreover, it is appropriate to interpret those grounds for refusal in the light of the general interest underlying each of them. The general interest to be taken into consideration must reflect different considerations according to the ground for refusal in question (16/09/2004, C‑329/02 P, SAT/2, EU:C:2004:532, § 25).

The marks referred to in Article 7(1)(b) EUTMR are, in particular, those that do not enable the relevant public ‘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). This is the case for, inter alia, signs commonly used in connection with the marketing of the goods or services concerned (15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 65).

Registration ‘of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use’ (04/10/2001, C‑517/99, Bravo, EU:C:2001:510, § 40). ‘Furthermore, it is not appropriate to apply to slogans criteria which are stricter than those applicable to other types of sign’ (11/12/2001, T‑138/00, Das Prinzip der Bequemlichkeit, EU:T:2001:286, § 44).

A sign, such as a slogan, that fulfils functions other than that of a trade mark in the traditional sense of the term ‘is only distinctive for the purposes of Article 7(1)(b) EUTMR if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin’ (05/12/2002, T‑130/01, Real People, Real Solutions, EU:T:2002:301, § 20 ; and 03/07/2003, T‑122/01, Best Buy, EU:T:2003:183, § 21).

The Office cannot detect anything distinctive about the mark NEW GENERATION in relation to meat substitutes.

The expression NEW GENERATION has a clear and obvious meaning that will be understood by English-speaking consumers as referring to products that are newly developed and the most recent of its kind. It is a commonly used expression, not only in relation to electronic goods, fashion and music etc. but it may be used to refer to any product that is newly invented and trendy.

The Office has refused similar applications for goods that are not related to electronics or technology, such as no 10415644 - IRON OF THE NEW GENERATION (classes 5, 29, 30 and 32); no 012819538 - NEW GENERATION FERTILIZERS (class 31) and no 008475998 - NEW GENERATION (classes 3, 5 and 25).

Consumers are increasingly aware of the environmental impact of meat consumption and there is a rising demand of plant based meat substitutes. In relation to meat substitutes the mark will be perceived as pure promotional information communicating that the goods are the latest version of meat-like sausages, steaks etc. on the market.

There is nothing unusual, vague or suggestive about the mark. In the absence of an additional distinctive element, such as a company name or a fanciful logo, there is nothing in the mark that might enable the relevant public to perceive the mark as an indication of commercial origin in relation to the goods in question.

4. For the abovementioned reasons, and pursuant to Article 7(1)(b) EUTMR and Article 7(2) EUTMR, the application for European Union trade mark No 018237800 is hereby rejected for all the goods claimed, namely for (list only provided in Swedish):

Class 29 Köttersättningar i form av korvar, biffar och filéer.

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.

Cecilia ÅLIN