Refusal of application for a European Union trade mark

(Article 7 EUTMR and Rule 11(3) EUTMIR)

Alicante, 09/11/2016

Grünecker Patent- und Rechtsanwälte PartG mbB

Leopoldstr. 4

D-80802 München

ALEMANIA

Application No:	015410509
Your reference:	EW34172AF295wof
Trade mark:	NUTRITION FOR LONGEVITY
Mark type:	Word mark
Applicant:	L-Nutra, Inc. 3975 Landmark St., Suite 500 Culver City CA 90232 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 27/05/2016 pursuant to Article 7(1)(b) and (c) EUTMR and Article 7(2) EUTMR 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 26/07/2016, which may be summarised as follows:

1. The mark applied for, ‘NUTRITION FOR LONGEVITY’, will not immediately inform consumers about the kind or intended purpose of the goods and services covered in Classes 5 and 44. Consumers will have to undertake additional mental steps to draw a connection between the mark and the goods and services for which registration is sought. This especially applies to the services covered in Class 44, as the subject of the phrase ‘NUTRITION FOR LONGEVITY’ is ‘NUTRITION’, which can only refer to goods and not to services. Furthermore, even though nutrition may influence the health of consumers, there is no direct link between longevity and a certain kind of nutrition because life expectancy depends on various factors, which may be far more important for a long life than a special kind of nutrition. Therefore, the public’s attention will be centred on the catchy overstatement of the sign, which will provoke further thought on the part of the public and, consequently, will be easily and permanently memorised.

2. The following European Union trade marks, which contain the word ‘nutrition’ or ‘longevity’, cover identical or similar goods and services and were registered by the EUIPO: European Union trade mark No 09 828 237, ‘LONGEVITY ENERGETIC’, registered for, inter alia, ‘medical care’ and ‘health care’ in Class 44; European Union trade mark No 07 129 406, ‘LONGEVITY’, covering, inter alia, ‘sporting activities’ in Class 41 and ‘restaurant services (food)’ in Class 43; European Union trade mark No 02 231 371, ‘NUTRITION FOR LIFE’, registered for, inter alia, ‘dietetic substances and supplements’ in Class 5. In addition, the mark applied for was recently accepted for registration in the United States of America, where English is the main official language.

Pursuant to Article 75 EUTMR, 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.

1. Considering the meanings of the words ‘NUTRITION FOR LONGEVITY’ provided in the objection raised on 27/05/2016, the Office sees no reason why they should not be immediately understood as meaning that the goods at issue are nutritional meals, supplements and teas that help to prolong life. The same applies to the services for which registration is sought, namely nutritional guidance and information, which can serve the same purpose. The sign does not have any unusual or ambiguous character, in the light of English linguistic rules on syntax, grammar, phonetics and/or semantics, that would lead the relevant public, which is, as mentioned above, reasonably well-informed and reasonably observant and circumspect, to make an association of a different kind. There are no mental steps required to deduce the meaning of the words ‘NUTRITION FOR LONGEVITY’.

It may well be true that life expectancy depends on various factors; however, it is also true that nutrition may influence the health of consumers and therefore may help to prolong their lives. The relevant public simply will not assume that they will live longer merely as a result of consuming the applicant’s goods and using its services. However, it is highly reasonable to assume that the relevant public will indeed perceive the mark applied for as one of the factors contributing to increasing the quality and length of one’s life.

2. As regards the applicant’s argument that a number of similar registrations have been accepted by the EUIPO, according to settled case‑law, ‘decisions concerning registration of a sign as a European Union trade mark … are adopted in the exercise of circumscribed powers and are not a matter of discretion’. Accordingly, the registrability of a sign as a European Union trade mark must be assessed solely on the basis of the EUTMR, as interpreted by the Union judicature, and not on the basis of previous Office practice (15/09/2005, C‑37/03 P, BioID, EU:C:2005:547, § 47; and 09/10/2002, T‑36/01, Glass pattern, EU:T:2002:245, § 35).

‘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’ (27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 67).

In addition, although the marks referred to by the applicant contain words ‘nutrition’ or ‘longevity’, they contain additional elements and/or will be perceived differently by the relevant consumer as they transmit different messages.

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

the European Union 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 European Union trade mark must be assessed by reference only to the relevant Union rules. Accordingly, the Office and, if appropriate, the Union 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.

(27/02/2002, T‑106/00, Streamserve, EU:T:2002:43, § 47.)

For the abovementioned reasons, and pursuant to Article 7(1)(b) and (c) EUTMR and 7(2) EUTMR, the application for European Union trade mark No 15 410 509 is hereby rejected for all the goods and services claimed.

According to Article 59 EUTMR, you have a right to appeal against this decision. According to Article 60 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.

Sandra KASPERIŪNAITĖ