Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 18/11/2020

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Carrie-Louise Bradley

Europarc Innovation Centre

Innovation Way

Grimsby

North East Lincolnshire DN37 9TT

REINO UNIDO

Application No:	018270215
Your reference:	T00374EM-PROG
Trade mark:	SleepWellBaby
Mark type:	Word mark
Applicant:	Sleepfit Solutions Pty Ltd 223 Liverpool Street Darlinghurst New South Wales 2010 AUSTRALIA

The Office raised an objection on 30/07/2020 pursuant to Article 7(1)(b) 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.

Lack of distinctiveness

The distinctive character of a trade mark is assessed in relation to the goods or services for which protection is sought and the perception of the relevant public. In the present case, the relevant English-speaking consumer would understand the sign as having its literal meaning: sleep well baby.

The abovementioned meaning of the words Sleep, Well and Baby composing the trade mark can be supported by the following dictionary references:

sleep noun ‘A condition of body and mind which typically recurs for several hours every night, in which the nervous system is inactive, the eyes closed, the postural muscles relaxed, and consciousness practically suspended.’ (information extracted from Lexico Dictionary on 28/07/2020 at https://www.lexico.com/definition/sleep ).

sleep verb ‘Be in a state of sleep; be asleep.’ (information extracted from Lexico Dictionary on 28/07/2020 at https://www.lexico.com/definition/sleep ).

well adverb ‘In a good or satisfactory way.’ (information extracted from Lexico Dictionary on 28/07/2020 at https://www.lexico.com/definition/well ).

baby noun ‘A very young child.’ (information extracted from Lexico Dictionary on 28/07/2020 at https://www.lexico.com/definition/baby ).

The sign for which protection is sought, ‘SleepWellBaby’, would simply be perceived by the relevant public as a promotional laudatory slogan, the function of which is to communicate a value 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 assist the relevant consumer with babies sleep problems. Services on offer in Class 44 can help in the diagnostic and the care. For example, there are numerous sleep-training techniques which may be learnt from health visitors by consulting these servicers or by using an application/computer software. The goods in Class 9 can also be helpful in monitoring/assisting/tracking babies’ sleep.

Therefore, the sign in question is devoid of any distinctive character within the meaning of Article 7(1)(b) and Article 7(2) EUTMR.

The applicant failed to submit observations within the time limit. For the reasons set out in the letter of objection, and pursuant to 7(1)(b) and Article 7(2) EUTMR, the application for European Union trade mark No 18 270 215 is hereby rejected for all the goods and services 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.

Carine FORZY