Refusal of application for a Community trade mark

(Article 7 CTMR and Rule 11(3) CTMIR)

Alicante, 22/12/2015

COHAUSZ & FLORACK Patent- und Rechtsanwälte Partnerschaftsgesellschaft mbB

Bleichstr. 14

D-40211 Düsseldorf

ALEMANIA

Application No:	014504716
Your reference:	151301EU
Trade mark:	Marsala Red Leather
Mark type:	Word mark
Applicant:	LG ELECTRONICS INC. 128, Yeoui-daero, Yeongdeungpo-gu Seoul 150-721 REPÚBLICA DE COREA (LA)

On 09/10/2015, the Office raised an objection to the registration of the word mark “Marsala Red Leather” pursuant to Article 7.1(b), (c) and 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 (see Annex One – 3 pages).

Applicant’s submissions

By letter dated 11/12/2015, the applicant submitted its observations, which can be summarised as follows:

• The term is does not have a clear meaning

• The reference to a specific colour is vague

• The term is merely suggestive

Reasons

Pursuant to Article 75 CTMR, 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, and after a re-examination of the application, the Office maintains the objection for most of the goods applied for.

The objection is, however, hereby waived for:

9 Computer application software; Computer software for mobile phones.

The applicant bases almost the entirety of its arguments on the fact that the term as applied for has no specific and clear meaning.

It is the opinion of the Office, however, that in the context of the contested goods, the consumer would see nothing more than a clearly descriptive message, inasmuch as their component parts could contain leather which would be of the Marsala red shade. The Office has already indicated that Marsala is an official colour name as defined by the universally recognised Pantone standard.

It is not at all uncommon for electronic consumer goods to be adorned or embellished with leather inserts or coverings.

In this context, the term applied for is descriptive in its nature, and it is difficult to conceive what else the sign would convey given the unambiguous meaning of the words, both in isolation, and when combined.

Nor is it relevant that a colour may be perceived differently by different people when analysing the descriptiveness of the colour’s name. Regardless of how someone views the colour red, for example, a red car will always be a red car.

For the abovementioned reasons, and pursuant to Article 7(1)(b), (c), and 7(2) CTMR, the application for Community trade mark No 014504716 is hereby rejected.

According to Article 59 CTMR, you have a right to appeal 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.

Mark Kennedy

Trade Mark Examiner

Operations Department – Team 16