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:	014637722
Your reference:	151763EU
Trade mark:	Aquamarine
Mark type:	Word mark
Applicant:	LG ELECTRONICS INC. 128, Yeoui-daero, Yeongdeungpo-gu Seoul 150-721 REPÚBLICA DE COREA (LA)

On 23/10/2015, the Office raised an objection to the registration of the word mark “Aquamarine” 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 – 4 pages).

Applicant’s submissions

By letter dated 14/12/2015, the applicant submitted its observations, which can be summarised as follows:

• The term is does not have a clear meaning

• Aquamarine does not give a proper indication of a colour

• 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.

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

This is factually incorrect. As the Office pointed out in its objection letter, the term applied for is the official name of a specific colour, as defined by the universally accepted Pantone colour standard.

It is, therefore, difficult to conceive what impression the term would give to the consumer of the contested goods other than the name of a colour.

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 014637722 is hereby rejected for the contested goods.

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