Refusal of application for a Community trade mark

(Article 7 CTMR and Rule 11(3) CTMIR)

Alicante, 01/03/2016

EP&C

P.O. Box 3241

NL-2280 GE Rijswijk

PAÍSES BAJOS

Application No:	014790919
Your reference:	TM11855EU00
Trade mark:	SABRA
Mark type:	Figurative mark
Applicant:	Tivall Food Industries Ltd. Kibbutz Lochamei Hagetaot Kibbutz Lochamei Hagetaot ISRAEL

The Office raised an objection on 20/11/2015 pursuant to Article 7(1)(b) and (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.

The applicant submitted its observations on 19/01/2016, which may be summarised as follows:

1- A small survey amongst people in the office being confronted with the term SABRA results in that they do not know this meaning at all. A survey amongst friends and people outside the office confirms this also. It really makes no sense at all to conclude this just on a definition of the Collins dictionary.

2- Wikipedia and a Google search show that the word SABRA has more meanings

3- The word SABRA does not immediately inform consumers without further

reflection that the goods applied are being produced by native-born Israeli Jews and originate from Israel. The applicant wonders if the mark refers to Israeli as being part of the salad, or being made of Israeli persons.

4- The applicant refers to the large amounts of SABRA registrations all over the world.

5- Reference is made to CTM registration 4908695.

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, the Office has decided to maintain the objection.

General remarks on Article 7(1)(c) CTMR

Under Article 7(1)(c) CTMR, ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ are not to be registered.

It is settled case-law that each of the grounds for refusal to register listed in Article 7(1) CTMR 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 (judgment of 16/09/2004, C‑329/02 P, ‘SAT.1’, paragraph 25).

By prohibiting the registration as Community trade marks of the signs and indications to which it refers, Article 7(1)(c) CTMR

pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the characteristics of goods or services in respect of which registration is sought may be freely used by all. That provision accordingly prevents such signs and indications from being reserved to one undertaking alone because they have been registered as trade marks.

(See judgment of 23/10/2003, C‑191/01 P, ‘Wrigley’, paragraph 31.)

‘The signs and indications referred to in Article 7(1)(c) [CTMR] are those which may serve in normal usage from the point of view of the target public to designate, either directly or by reference to one of their essential characteristics, the goods or service in respect of which registration is sought’ (judgment of 26/11/2003, T‑222/02, ‘ROBOTUNITS’, paragraph 34).

Specific remarks concerning the applicants observations

1- A small survey amongst people in the office being confronted with the term SABRA results in that they do not know this meaning at all. A survey amongst friends and people outside the office confirms this also. It really makes no sense at all to conclude this just on a definition of the Collins dictionary.

Collins Dictionary is one of United Kingdom’s most prestigious dictionaries. Consequently, it speaks for itself that the Office takes the definitions found in this particular dictionary utter seriously.

A ´small survey´ conducted amongst people in the representative´s office and amongst friends is absolutely irrelevant.

A survey conducted amongst Jewish people would have been more compelling.

2- Wikipedia and a Google search show that the word SABRA has more meanings

For a trade mark to be refused registration under Article 7(1)(c) CTMR,

it is not necessary that the signs and indications composing the mark that are referred to in that Article actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes. A sign must therefore be refused registration under that provision if at least one of its possible meanings designates a characteristic of the goods or services concerned.

(See judgment of 23/10/2003, C‑191/01 P, ‘Wrigley’, paragraph 32, emphasis added.)

3- The word SABRA does not immediately inform consumers without further

reflection that the goods applied are being produced by native-born Israeli Jews and originate from Israel. The applicant wonders if the mark refers to Israeli as being part of the salad, or being made of Israeli persons.

Contrary to the applicant, it actually never crossed the Office´s mind that the mark could refer to Israeli as being part of a salad, or being made of Israeli persons.

The Office reiterates that the relevant public will, without the need of any particular mental effort, understand that the goods applied for are being produced by native-born Jews, and originate from Israel.

4- The applicant refers to the large amounts of SABRA registrations all over the world.

As regards national decisions referred to by the applicant, according to case-law:

´the Community trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it is self-sufficient and applies independently of any national system … Consequently, the registrability of a sign as a Community mark must be assessed by reference only to the relevant Community rules. Accordingly, the Office and, if appropriate, the Community judicature are not bound by a decision given in a Member State, or indeed a third country, that the sign in question is registrable as a national mark. That is so even if such a decision was adopted under national legislation harmonised with Directive 89/104 or in a country belonging to the linguistic area in which the word sign in question originated.´

(See judgment of 27/02/2002, T‑106/00, ‘STREAMSERVE’, paragraph 47.)

5- Reference is made to CTM registration 4908695.

‘It is clear from the case-law of the Court of Justice that observance of the principle of equal treatment must be reconciled with observance of the principle of legality according to which no person may rely, in support of his claim, on unlawful acts committed in favour of another’ (judgment of 27/02/2002, T‑106/00, ‘STREAMSERVE’, paragraph 67).

For the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) and 7(2) CTMR, the application for Community trade mark No 014790919 is hereby rejected for all the goods claimed.

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.

Jean Marc SCHULLER