Refusal of application for a Community trade mark

(Article 7 CTMR and Rule 11(3) CTMIR)

Alicante, 02/02//2016

PHILIPS INTELLECTUAL PROPERTY & STANDARDS

High Tech Campus 5, Bldg. HTC 5

NL-5656 AE Eindhoven

NETHERLANDS

Application No:	14 202 618
Your reference:	2014T50088EU
Trade mark:	EYECOMFORT
Mark type:	Word mark
Applicant:	Koninklijke Philips N.V. High Tech Campus 5 NL-5656 AE Eindhoven NETHERLANDS

1. Summary of the facts

1. The Office raised an objection on 15/06/2015, pursuant to Article 7(1)(b) and (c) and Article 7(2) CTMR, 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 11/08/2015. In reply to the applicant's observations, the Office maintained the objection raised under Article 7(1)(b) CTMR and granted the applicant a new time-limit to submit further observations in respect of the new reasons and evidence set out in the notice dated 28/10/2015.

2. New observations of the applicant

The applicant’s new observations, submitted on 24/12/2015, may be summarised as follows:

• The examiner stated that ‘a simple”Google” search showed that the words “EYE” and “COMFORT” have already been used on the marketplace to describe lighting products’. However, the examples given refer to ‘eye drops’ or goods that are not related to the products sold by the applicant under the mark applied for.

• Eye drops could be comforting to the eye. Lighting products, however, do not have this effect at all.

In response to the applicant's first argument, the Office, firstly, points out that the following was stated in the notice dated 28/10/2015:

‘It is submitted that even a simple “Google” search reveals that the words “EYE” and “COMFORT” have already been used not only in various filed of everyday life, but also in relation to the goods concerned, including so-called “solid-state lighting”.

Secondly, all the examples provided on page 6 of the notice dated 28/10/2015 relates only to lighting products, and not to ‘eye drops’.

Thirdly, all the examples of the current use of the expression – ‘EYE COMFORT’ – were provided in support of the statement that the relevant public is very familiar with this expression –, regardless of whether it is presented as a single word, as in the mark at issue, or as two words.

Furthermore, as regards the applicant’s argument relating to the effects of lighting products on eye comfort, it is sufficient to state that the applicant itself describes these effects as follows:

(information extracted on 26/01/2016 from http://www.philips.co.uk/c-p/674203026/eyecare-table-lamp);

(information extracted on 26/01/2016 from http://www.newscenter.philips.com/main/standard/news/press/2015/20151210-philips-collaborates-with-xiaomi-to-launch-a-connected-desk-lamp.wpd).

3. Decision

For all the reasons stated in the notices of grounds for refusal of 15/06/2015 and 28/10/2015, and in this decision, and pursuant to Article 7(1)(b) and 7(2) CTMR, the application for Community trade mark No 14 202 618 is hereby refused for all the goods for which registration is sought.

4. Right to appeal

According to Article 59 CTMR, you have a right to appeal against this decision. According to Article 60 CTMR, notice of appeal must be filed in writing with the Office within two months of the date of notification of this decision. 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 800 has been paid.

Mirjana PUSKARIC