Refusal of application for a European Union trade mark

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

Alicante, 01/08/2017

STOBBS

Endurance House, Vision Park, Chivers Way

Cambridge CB24 9ZR

REINO UNIDO

Application No:	016018913
Your reference:	2609/10363/YXZ/AC1
Trade mark:	JUST WALK IN
Mark type:	Word mark
Applicant:	Hallie LLC 2711 Centerville Road, Suite 400 Wilmington Delaware 19808 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 09/02/2017 pursuant to Article 7(1)(b) EUTMR and Article 7(2) EUTMR because it found that this trade mark is devoid of any distinctive character, for the reasons set out in the attached letter.

The applicant submitted its observations on 06/04/2017, which may be summarised as follows:

1. The applicant requested a division of the application.

2. The mark ‘JUST WALK IN’ is distinctive in relation to all the services in Class 35. The mark does not convey any meaningful message in relation to the online retailing services – a customer cannot ‘just walk in’ to an online retail store, as the very nature of these services is that they are not provided in a physical locality such as a building. The mark is distinctive in relation to ‘customer loyalty rewards program’ because the mark has no meaning in relation to these services.

3. For the remaining services in Class 35, the mark is also distinctive, as the mark has additional possible meanings that would be understood by the average consumer.

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 waive the objection for the following services:

Class 35 Online retail services connected with the sale of ajvar [preserved peppers], albumen for culinary purposes, albumin milk, alginates for culinary purposes, almonds, ground, aloe vera prepared for human consumption, anchovy, apple purée, bacon, beans, preserved, black pudding, bone oil, edible, broth, broth concentrates, butter, buttercream, caviar, charcuterie, cheese, clams [not live], cocoa butter, coconut butter, coconut, desiccated, coconut fat, coconut oil, compotes, condensed milk, corn oil, cranberry sauce [compote], crayfish, not live, cream [dairy products], croquettes, crustaceans, not live, curd, dates, edible birds’ nests, edible fats, edible oils, eggs, fat-containing mixtures for bread slices, fatty substances for the manufacture of edible fats, fish fillets, fish meal for human consumption, fish mousses, fish, not live, fish, preserved, fish, tinned [canned (am.)], foods prepared from fish, frosted fruits, frozen fruits, fruit-based snack food, fruit chips, fruit jellies, fruit peel, fruit, preserved, fruit preserved in alcohol, fruit pulp, fruit salads, fruit, stewed, fruits, tinned [canned (am.)], game, not live, gelatine, gherkins, ginger jam, ham, herrings, hummus [chickpea paste], isinglass for food, jams, jellies for food, kefir [milk beverage], kimchi [fermented vegetable dish], kumys [kumyss] [milk beverage], lard for food, lecithin for culinary purposes, lentils, preserved, linseed oil for culinary purposes, liver, liver pâté, lobsters, not live, low-fat potato chips, margarine, marmalade, meat, meat extracts, meat jellies, meat, preserved, meat, tinned [canned (am.)], milk, milk beverages, milk predominating, milk ferments for culinary purposes, milk products, milk shakes, mushrooms, preserved, mussels, not live, non-alcoholic egg nog, nuts, prepared, olive oil for food, olives, preserved, onions, preserved, oysters, not live, palm kernel oil for food, palm oil for food, peanut butter, peanuts, processed, peas, preserved, pectin for culinary purposes, piccalilli, pickles, pollen prepared as foodstuff, pork, potato chips, potato flakes, potato fritters, poultry, not live, powdered eggs, prawns, not live, preparations for making bouillon, preparations for making soup, preserved garlic, processed fish spawn, processed seeds, processed sunflower seeds, prostokvasha [soured milk], raisins, rape oil for food, rennet, ryazhenka [fermented baked milk], salmon, salted fish, salted meats, sardines, sauerkraut, sausages, sausages in batter, sea-cucumbers, not live, seaweed extracts for food, sesame oil, shellfish, not live, shrimps, not live, silkworm chrysalis, for human consumption, smetana [sour cream], snail eggs for consumption, soups, soya beans, preserved, for food, soya milk [milk substitute], spiny lobsters, not live, suet for food, sunflower oil for food, tahini [sesame seed paste], toasted laver, tofu, tomato juice for cooking, tomato purée, tripe, truffles, preserved, tuna fish, vegetable juices for cooking, vegetable mousses, vegetable salads, vegetable soup preparations, vegetables, cooked, vegetables, dried, vegetables, preserved, vegetables, tinned [canned (am.)], whey, whipped cream, white of eggs, yogurt, yolk of eggs, allspice, almond confectionery, almond paste, aniseed, aromatic preparations for food, artificial coffee, baking powder, baking soda [bicarbonate of soda for cooking purposes], barley meal, bean meal, bee glue, beer vinegar, binding agents for ice cream, bread, bread rolls, breadcrumbs, buns, cake frosting [icing], cake powder, cakes, candy, capers, caramels [candy], celery salt, cereal bars, cereal-based snack food, cereal preparations, cheeseburgers [sandwiches], chewing gum, chicory [coffee substitute], chips [cereal products], chocolate, chocolate-based beverages, chocolate beverages with milk, chocolate mousses, chow-chow [condiment], chutneys [condiments], cinnamon [spice], cloves [spice], cocoa, cocoa-based beverages, cocoa beverages with milk, coffee, coffeebased beverages, coffee beverages with milk, coffee flavorings [flavourings], condiments, confectionery, confectionery for decorating christmas trees, cookies, cooking salt, corn flakes, corn meal, corn, milled, corn, roasted, couscous [semolina], crackers, cream of tartar for culinary purposes, crushed barley, crushed oats, curry [spice], custard, dessert mousses [confectionery], dough, dressings for salad, edible ices, essences for foodstuffs, except etheric essences and essential oils, farinaceous foods, ferments for pastes, flavorings, other than essential oils, flavorings, other than essential oils, for beverages, flavorings, other tan essential oils, for cakes, flourmilling products, fondants [confectionery], frozen yogurt [confectionery ices], fruit coulis [sauces], fruit jellies [confectionery], garden herbs, preserved [seasonings], ginger [spice], gingerbread, glucose for culinary purposes, gluten additives for culinary purposes, gluten prepared as foodstuff, golden syrup, groats for human food, gruel, with a milk base, for food, halvah, ham glaze, high-protein cereal bars, hominy, hominy grits, honey, husked barley, husked oats, ice cream, ice for refreshment, ice, natural or artificial, iced tea, infusions, not medicinal, ketchup [sauce], leaven, linseed for human consumption, liquorice [confectionery], lozenges [confectionery], macaroni, macaroons [pastry], malt biscuits, malt extract for food, malt for human consumption, maltose, marinades, marzipan, mayonnaise, meal, meat gravies, meat pies, meat tenderizers, for household purposes, mint for confectionery, molasses for food, muesli, mustard, mustard meal, natural sweeteners, noodle-based prepared meals, noodles, nutmegs, oat-based food, oat flakes, oatmeal, palm sugar, pancakes, pasta, pasta sauce, pasties, pastries, pastry, peanut confectionery, pepper, peppermint sweets, peppers [seasonings], pesto [sauce], petit-beurre biscuits, petits fours [cakes], pies, pizzas, popcorn, potato flour for food, powders for ice cream, pralines, preparations for stiffening whipped cream, puddings, quiches, ravioli, relish [condiment], rice, rice-based snack food, rice cakes, royal jelly, rusks, saffron [seasoning], sago, salt for preserving foodstuffs, sandwiches, sauces [condiments], sausage binding materials, sea water for cooking, seasonings, seaweed [condiment], semolina, sorbets [ices], soya bean paste [condiment], soya flour, soya sauce, spaghetti, spices, spring rolls, star aniseed, starch for food, stick liquorice [confectionery], sugar, sushi, sweetmeats [candy], tabbouleh, tacos, tapioca, tapioca flour for food, tarts, tea, tea-based beverages, thickening agents for cooking foodstuffs, tomato sauce, tortillas, turmeric for food, unleavened bread, unroasted coffee, vanilla [flavoring] [flavouring], vanillin [vanilla substitute], vegetal preparations for use as coffee substitutes, vermicelli [noodles], vinegar, waffles, wheat flour, wheat germ for human consumption, yeast, algae for human or animal consumption, algarovilla for animal consumption, almonds [fruits], aloe vera plants, animal fattening preparations, animal foodstuffs, aromatic sand for pets [litter], bagasses of cane [raw material], barley, beans, fresh, beet, berries, fresh fruits, beverages for pets, bird food, bran, bran mash for animal consumption, bred stock, bulbs, bushes, cereal seeds, unprocessed, chestnuts, fresh, chicory roots, chicory [salad], christmas trees, citrus fruit, cocoa beans, raw, coconut shell, coconuts, cola nuts, copra, crayfish, live, crustaceans, live, cucumbers, fresh, cuttle bone for birds, dog biscuits, draff, edible chews for animals, eggs for hatching, fertilised, fish, live, fish meal for animal consumption, flax meal [fodder], flowers, dried, for decoration, flowers, natural, fodder, fruit, fresh, garden herbs, fresh, grains [cereals], grains for animal consumption, grapes, fresh, groats for poultry, hay, hazelnuts, hop cones, hops, juniper berries, leeks, fresh, lemons, fresh, lentils, fresh, lettuce, fresh, lime for animal forage, linseed for animal consumption, linseed meal for animal consumption, lobsters, live, locust beans, maize, maize cake for cattle, malt for brewing and distilling, marc, marrows, mash for fattening livestock, meal for animals, menagerie animals, mushroom spawn for propagation, mushrooms, fresh, mussels, live, nettles, nuts [fruits], oats, oil cake, olives, fresh, onions, fresh vegetables, oranges, oysters, live, palm trees, palms [leaves of the palm tree], peanut cake for animals, peanut meal for animals, peanuts, fresh, peas, fresh, peppers [plants], pet food, pine cones, plant seeds, plants, plants, dried, for decoration, pollen [raw material], potatoes, fresh, poultry, live, residual products of cereals for animal consumption, rhubarb, rice meal for forage, rice, unprocessed, roots for food, rose bushes, rough cork, rye, sea-cucumbers, live, seed germ for botanical purposes, seedlings, sesame, shellfish, live, spinach, fresh, spiny lobsters, live, sugarcane, truffles, fresh, vegetables, fresh, vine plants, wheat, wheat germ for animal consumption, wreaths of natural flowers, yeast for animal consumption, aerated water, aloe vera drinks, non-alcoholic, aperitifs, non-alcoholic, beer, beer wort, cider, nonalcoholic, cocktails, non-alcoholic, essences for making beverages, extracts of hops for making beer, fruit juice, fruit nectars, non-alcoholic, ginger ale, grape must, unfermented, isotonic beverages, kvass [non-alcoholic beverage], lemonades, lithia water, malt beer, malt wort, milk of almonds [beverage], mineral water [beverages], must, non-alcoholic beverages, nonalcoholic fruit extracts, non-alcoholic fruit juice beverages, non-alcoholic honey-based beverages, orgeat, pastilles for effervescing beverages, peanut milk [non-alcoholic beverage], powders for effervescing beverages, preparations for making aerated water, preparations for making beverages, preparations for making liqueurs, preparations for making mineral water, sarsaparilla [non-alcoholic beverage], seltzer water, smoothies, soda water, sorbets [beverages], syrups for beverages, syrups for lemonade, table waters, tomato juice [beverage], vegetable juices [beverages], waters [beverages], whey beverages, alcoholic beverages (except beers), alcoholic beverages containing fruit, alcoholic beverages, except beer, alcoholic essences, alcoholic extracts, anise [liqueur], anisette [liqueur], aperitifs, arak [arrack], bitters, brandy, cider, cocktails, curacao, digesters [liqueurs and spirits], distilled beverages, fruit extracts, alcoholic, gin, hydromel [mead], kirsch, liqueurs, nira [sugarcane-based alcoholic beverage], peppermint liqueurs, perry, piquette, pre-mixed alcoholic beverages, other than beer-based, rice alcohol, rum, sake, spirits [beverages], vodka, whisky, wine; customer loyalty rewards program for shoppers.

The objection is maintained for the remaining services, namely for:

Class 35 Advertising; business management; business administration; office functions; retail services connected with the sale of ajvar [preserved peppers], albumen for culinary purposes, albumin milk, alginates for culinary purposes, almonds, ground, aloe vera prepared for human consumption, anchovy, apple purée, bacon, beans, preserved, black pudding, bone oil, edible, broth, broth concentrates, butter, buttercream, caviar, charcuterie, cheese, clams [not live], cocoa butter, coconut butter, coconut, desiccated, coconut fat, coconut oil, compotes, condensed milk, corn oil, cranberry sauce [compote], crayfish, not live, cream [dairy products], croquettes, crustaceans, not live, curd, dates, edible birds’ nests, edible fats, edible oils, eggs, fat-containing mixtures for bread slices, fatty substances for the manufacture of edible fats, fish fillets, fish meal for human consumption, fish mousses, fish, not live, fish, preserved, fish, tinned [canned (am.)], foods prepared from fish, frosted fruits, frozen fruits, fruit-based snack food, fruit chips, fruit jellies, fruit peel, fruit, preserved, fruit preserved in alcohol, fruit pulp, fruit salads, fruit, stewed, fruits, tinned [canned (am.)], game, not live, gelatine, gherkins, ginger jam, ham, herrings, hummus [chickpea paste], isinglass for food, jams, jellies for food, kefir [milk beverage], kimchi [fermented vegetable dish], kumys [kumyss] [milk beverage], lard for food, lecithin for culinary purposes, lentils, preserved, linseed oil for culinary purposes, liver, liver pâté, lobsters, not live, low-fat potato chips, margarine, marmalade, meat, meat extracts, meat jellies, meat, preserved, meat, tinned [canned (am.)], milk, milk beverages, milk predominating, milk ferments for culinary purposes, milk products, milk shakes, mushrooms, preserved, mussels, not live, non-alcoholic egg nog, nuts, prepared, olive oil for food, olives, preserved, onions, preserved, oysters, not live, palm kernel oil for food, palm oil for food, peanut butter, peanuts, processed, peas, preserved, pectin for culinary purposes, piccalilli, pickles, pollen prepared as foodstuff, pork, potato chips, potato flakes, potato fritters, poultry, not live, powdered eggs, prawns, not live, preparations for making bouillon, preparations for making soup, preserved garlic, processed fish spawn, processed seeds, processed sunflower seeds, prostokvasha [soured milk], raisins, rape oil for food, rennet, ryazhenka [fermented baked milk], salmon, salted fish, salted meats, sardines, sauerkraut, sausages, sausages in batter, sea-cucumbers, not live, seaweed extracts for food, sesame oil, shellfish, not live, shrimps, not live, silkworm chrysalis, for human consumption, smetana [sour cream], snail eggs for consumption, soups, soya beans, preserved, for food, soya milk [milk substitute], spiny lobsters, not live, suet for food, sunflower oil for food, tahini [sesame seed paste], toasted laver, tofu, tomato juice for cooking, tomato purée, tripe, truffles, preserved, tuna fish, vegetable juices for cooking, vegetable mousses, vegetable salads, vegetable soup preparations, vegetables, cooked, vegetables, dried, vegetables, preserved, vegetables, tinned [canned (am.)], whey, whipped cream, white of eggs, yogurt, yolk of eggs, allspice, almond confectionery, almond paste, aniseed, aromatic preparations for food, artificial coffee, baking powder, baking soda [bicarbonate of soda for cooking purposes], barley meal, bean meal, bee glue, beer vinegar, binding agents for ice cream, bread, bread rolls, breadcrumbs, buns, cake frosting [icing], cake powder, cakes, candy, capers, caramels [candy], celery salt, cereal bars, cereal-based snack food, cereal preparations, cheeseburgers [sandwiches], chewing gum, chicory [coffee substitute], chips [cereal products], chocolate, chocolate-based beverages, chocolate beverages with milk, chocolate mousses, chow-chow [condiment], chutneys [condiments], cinnamon [spice], cloves [spice], cocoa, cocoa-based beverages, cocoa beverages with milk, coffee, coffeebased beverages, coffee beverages with milk, coffee flavorings [flavourings], condiments, confectionery, confectionery for decorating christmas trees, cookies, cooking salt, corn flakes, corn meal, corn, milled, corn, roasted, couscous [semolina], crackers, cream of tartar for culinary purposes, crushed barley, crushed oats, curry [spice], custard, dessert mousses [confectionery], dough, dressings for salad, edible ices, essences for foodstuffs, except etheric essences and essential oils, farinaceous foods, ferments for pastes, flavorings, other than essential oils, flavorings, other than essential oils, for beverages, flavorings, other than essential oils, for cakes, flourmilling products, fondants [confectionery], frozen yogurt [confectionery ices], fruit coulis [sauces], fruit jellies [confectionery], garden herbs, preserved [seasonings], ginger [spice], gingerbread, glucose for culinary purposes, gluten additives for culinary purposes, gluten prepared as foodstuff, golden syrup, groats for human food, gruel, with a milk base, for food, halvah, ham glaze, high-protein cereal bars, hominy, hominy grits, honey, husked barley, husked oats, ice cream, ice for refreshment, ice, natural or artificial, iced tea, infusions, not medicinal, ketchup [sauce], leaven, linseed for human consumption, liquorice [confectionery], lozenges [confectionery], macaroni, macaroons [pastry], malt biscuits, malt extract for food, malt for human consumption, maltose, marinades, marzipan, mayonnaise, meal, meat gravies, meat pies, meat tenderizers, for household purposes, mint for confectionery, molasses for food, muesli, mustard, mustard meal, natural sweeteners, noodle-based prepared meals, noodles, nutmegs, oat-based food, oat flakes, oatmeal, palm sugar, pancakes, pasta, pasta sauce, pasties, pastries, pastry, peanut confectionery, pepper, peppermint sweets, peppers [seasonings], pesto [sauce], petit-beurre biscuits, petits fours [cakes], pies, pizzas, popcorn, potato flour for food, powders for ice cream, pralines, preparations for stiffening whipped cream, puddings, quiches, ravioli, relish [condiment], rice, rice-based snack food, rice cakes, royal jelly, rusks, saffron [seasoning], sago, salt for preserving foodstuffs, sandwiches, sauces [condiments], sausage binding materials, sea water for cooking, seasonings, seaweed [condiment], semolina, sorbets [ices], soya bean paste [condiment], soya flour, soya sauce, spaghetti, spices, spring rolls, star aniseed, starch for food, stick liquorice [confectionery], sugar, sushi, sweetmeats [candy], tabbouleh, tacos, tapioca, tapioca flour for food, tarts, tea, tea-based beverages, thickening agents for cooking foodstuffs, tomato sauce, tortillas, turmeric for food, unleavened bread, unroasted coffee, vanilla [flavoring] [flavouring], vanillin [vanilla substitute], vegetal preparations for use as coffee substitutes, vermicelli [noodles], vinegar, waffles, wheat flour, wheat germ for human consumption, yeast, algae for human or animal consumption, algarovilla for animal consumption, almonds [fruits], aloe vera plants, animal fattening preparations, animal foodstuffs, aromatic sand for pets [litter], bagasses of cane [raw material], barley, beans, fresh, beet, berries, fresh fruits, beverages for pets, bird food, bran, bran mash for animal consumption, bred stock, bulbs, bushes, cereal seeds, unprocessed, chestnuts, fresh, chicory roots, chicory [salad], christmas trees, citrus fruit, cocoa beans, raw, coconut shell, coconuts, cola nuts, copra, crayfish, live, crustaceans, live, cucumbers, fresh, cuttle bone for birds, dog biscuits, draff, edible chews for animals, eggs for hatching, fertilised, fish, live, fish meal for animal consumption, flax meal [fodder], flowers, dried, for decoration, flowers, natural, fodder, fruit, fresh, garden herbs, fresh, grains [cereals], grains for animal consumption, grapes, fresh, groats for poultry, hay, hazelnuts, hop cones, hops, juniper berries, leeks, fresh, lemons, fresh, lentils, fresh, lettuce, fresh, lime for animal forage, linseed for animal consumption, linseed meal for animal consumption, lobsters, live, locust beans, maize, maize cake for cattle, malt for brewing and distilling, marc, marrows, mash for fattening livestock, meal for animals, menagerie animals, mushroom spawn for propagation, mushrooms, fresh, mussels, live, nettles, nuts [fruits], oats, oil cake, olives, fresh, onions, fresh vegetables, oranges, oysters, live, palm trees, palms [leaves of the palm tree], peanut cake for animals, peanut meal for animals, peanuts, fresh, peas, fresh, peppers [plants], pet food, pine cones, plant seeds, plants, plants, dried, for decoration, pollen [raw material], potatoes, fresh, poultry, live, residual products of cereals for animal consumption, rhubarb, rice meal for forage, rice, unprocessed, roots for food, rose bushes, rough cork, rye, sea-cucumbers, live, seed germ for botanical purposes, seedlings, sesame, shellfish, live, spinach, fresh, spiny lobsters, live, sugarcane, truffles, fresh, vegetables, fresh, vine plants, wheat, wheat germ for animal consumption, wreaths of natural flowers, yeast for animal consumption, aerated water, aloe vera drinks, non-alcoholic, aperitifs, non-alcoholic, beer, beer wort, cider, nonalcoholic, cocktails, non-alcoholic, essences for making beverages, extracts of hops for making beer, fruit juice, fruit nectars, non-alcoholic, ginger ale, grape must, unfermented, isotonic beverages, kvass [non-alcoholic beverage], lemonades, lithia water, malt beer, malt wort, milk of almonds [beverage], mineral water [beverages], must, non-alcoholic beverages, nonalcoholic fruit extracts, non-alcoholic fruit juice beverages, non-alcoholic honey-based beverages, orgeat, pastilles for effervescing beverages, peanut milk [non-alcoholic beverage], powders for effervescing beverages, preparations for making aerated water, preparations for making beverages, preparations for making liqueurs, preparations for making mineral water, sarsaparilla [non-alcoholic beverage], seltzer water, smoothies, soda water, sorbets [beverages], syrups for beverages, syrups for lemonade, table waters, tomato juice [beverage], vegetable juices [beverages], waters [beverages], whey beverages, alcoholic beverages (except beers), alcoholic beverages containing fruit, alcoholic beverages, except beer, alcoholic essences, alcoholic extracts, anise [liqueur], anisette [liqueur], aperitifs, arak [arrack], bitters, brandy, cider, cocktails, curacao, digesters [liqueurs and spirits], distilled beverages, fruit extracts, alcoholic, gin, hydromel [mead], kirsch, liqueurs, nira [sugarcane-based alcoholic beverage], peppermint liqueurs, perry, piquette, pre-mixed alcoholic beverages, other than beer-based, rice alcohol, rum, sake, spirits [beverages], vodka, whisky, wine; management of a retail store and or supermarket; retail store services in the field of fresh and prepared foods, cosmetics, cleaning supplies, beauty supplies, personal care products, pet products, pet food, tissues, toilet paper, napkins; information, advisory and consultancy services relating to the aforesaid.

Article 7(1)(b) EUTMR – general remarks

Under Article 7(1)(b) EUTMR, ‘trade marks which are devoid of any distinctive character’ are not to be registered.

It is settled case-law that each of the grounds for refusal to register listed in Article 7(1) EUTMR 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 (16/09/2004, C‑329/02 P, SAT/2, EU:C:2004:532, § 25).

The marks referred to in Article 7(1)(b) EUTMR are, in particular, those that do not enable the relevant public ‘to repeat the experience of a purchase, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition of the goods or services concerned’ (27/02/2002, T‑79/00, Lite, EU:T:2002:42, § 26). This is the case for, inter alia, signs commonly used in connection with the marketing of the goods or services concerned (15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 65).

Registration ‘of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use’ (04/10/2001, C‑517/99, Bravo, EU:C:2001:510, § 40). ‘Furthermore, it is not appropriate to apply to slogans criteria which are stricter than those applicable to other types of sign’ (11/12/2001, T‑138/00, Das Prinzip der Bequemlichkeit, EU:T:2001:286, § 44).

Although the criteria for assessing distinctiveness are the same for the various categories of marks, it may become apparent, in applying those criteria, that the relevant public’s perception is not necessarily the same for each of those categories and that, therefore, it may prove more difficult to establish distinctiveness for some categories of mark than for others (29/04/2004, C‑456/01 P & C‑457/01 P, Tabs, EU:C:2004:258, § 38).

Moreover, it is also settled case-law that the way in which the relevant public perceives a trade mark is influenced by its level of attention, which is likely to vary according to the category of goods or services in question (05/03/2003, T‑194/01, Soap device, EU:T:2003:53, § 42; 03/12/2003, T‑305/02, Bottle, EU:T:2003:328, § 34).

A sign, such as a slogan, that fulfils functions other than that of a trade mark in the traditional sense of the term ‘is only distinctive for the purposes of Article 7(1)(b) EUTMR if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin’ (05/12/2002, T‑130/01, Real People, Real Solutions, EU:T:2002:301, § 20; 03/07/2003, T‑122/01, Best Buy, EU:T:2003:183, § 21).

Assessment of the distinctive character of the mark

A mark’s distinctiveness can be assessed only, first, in relation to the goods or services for which registration is sought and, second, in relation to the perception of the relevant part of the public.

As set out in the notice of absolute grounds for refusal, the sign at issue, ‘JUST WALK IN’, is devoid of any distinctive character, as consumers will fail to perceive it as an indication of trade origin. It will instead be understood by the relevant public as a promotional message that merely serves to highlight positive aspects of the services concerned, namely that the consumer only has to go to the place where the applicant’s business is located to use the services provided.

The mark is composed of the expression ‘JUST WALK IN’ in standard upper case letters. There is no figurative element that could add any distinctive character to this expression. It will be immediately obvious to any English speaker that the mark applied for is composed of the English words ‘JUST’, ‘WALK’ and ‘IN’. Accordingly, the examination of its registrability must be based on the words and their combination as a whole.

The meaning of the mark ‘JUST WALK IN’ is obvious to any native English speaker, that is, the public in the United Kingdom, Ireland and Malta.

The combination of the words follows linguistic rules. This grammatically correct and normal combination of words in the context of the services for which registration is sought will have a direct and immediate meaning for the relevant English-speaking public, in that it will be perceived as a laudatory message stating that the services may be used by the relevant public by simply going to the place where the applicant’s business is located.

The services to which an objection has been raised and which are covered by the mark applied for are, inter alia, advertising, business management, business administration, office functions and retail services connected with the sale of a wide range of products. These are specialised services that target mainly the professional public but also the average consumer. In view of the nature of the services in question, the degree of awareness of the relevant public will vary from average to high.

The sign for which registration is sought, without any additional or graphic element that would result in the sign significantly deviating from being, as a whole, a mere promotional message, is incapable of performing the essential function of a trade mark and does not enable the consumer who purchased the goods and services in question to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (03/07/2003, T‑122/01, Best Buy, EU:T:2003:183, § 20). The target public will perceive the sign applied for as a general promotional message without regarding it as containing an indication of commercial origin that refers to the specific undertaking behind that indication.

In addition, in view of the nature of some of the goods and services in question, even if the awareness of part of the relevant public is high, given the relatively high technical level and cost of the services, their awareness is liable to be relatively low when it comes to purely promotional indications, which well-informed consumers do not see as decisive (05/12/2002, T‑130/01, Real People, Real Solutions, EU:T:2002:301, § 24).

It must be held that the fact that the relevant public is specialist cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is true that the degree of attention of the relevant specialist public is, by definition, higher than that of the average consumer, it does not necessarily follow that a weaker distinctive character of a sign is sufficient where the relevant public is specialist (12/07/2012, C‑311/11 P, Wir machen das Besondere einfach, EU:C:2012:460, § 48).

The sign ‘JUST WALK IN’ cannot be perceived as anything other than an indication of the characteristics of the services in question. The message expressed by the sign for which registration is sought will be clear, direct and immediate for the relevant public. It is not vague in any way, does not lend itself to different interpretations and is not imprecise or akin to an ‘evocative’ sign. The expression ‘JUST WALK IN’ is not sufficiently unusual that it requires a significant measure of interpretation, thought or analysis by the relevant consumer.

Furthermore, the fact that the sign at issue can have several meanings, that it can be a play on words and that it can be perceived as ironic, surprising and unexpected, does not suffice to make it distinctive. Those various elements only make that sign distinctive in so far as it is immediately perceived by the relevant public as an indication of the commercial origin of the applicant’s goods and services, and so as to enable the relevant public to distinguish, without any possibility of confusion, the applicant’s goods and services from those of a different commercial origin (15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 84).

Finally, the applicant did not claim that its mark had acquired distinctive character through genuine use. Since the mark for which protection is sought will be perceived by the relevant public as purely descriptive, it will not be able to fulfil the primary function of a trade mark, which is to distinguish the applicant’s services from those of competitors, and it will not be recognised by the public as an indication of the commercial origin of the services. Therefore, it is devoid of any distinctive character within the meaning of Article 7(1)(b) EUTMR (12/02/2004, C‑265/00, Biomild, EU:C:2004:87, § 19; 12/02/2004, C‑363/99, Postkantoor, EU:C:2004:86, § 86).

Conclusion

For the abovementioned reasons, and pursuant to Article 7(1)(b) EUTMR and Article 7(2) EUTMR, the application for European Union trade mark No 16 018 913 is hereby rejected for the following services:

Class 35 Advertising; business management; business administration; office functions; retail services connected with the sale of ajvar [preserved peppers], albumen for culinary purposes, albumin milk, alginates for culinary purposes, almonds, ground, aloe vera prepared for human consumption, anchovy, apple purée, bacon, beans, preserved, black pudding, bone oil, edible, broth, broth concentrates, butter, buttercream, caviar, charcuterie, cheese, clams [not live], cocoa butter, coconut butter, coconut, desiccated, coconut fat, coconut oil, compotes, condensed milk, corn oil, cranberry sauce [compote], crayfish, not live, cream [dairy products], croquettes, crustaceans, not live, curd, dates, edible birds’ nests, edible fats, edible oils, eggs, fat-containing mixtures for bread slices, fatty substances for the manufacture of edible fats, fish fillets, fish meal for human consumption, fish mousses, fish, not live, fish, preserved, fish, tinned [canned (am.)], foods prepared from fish, frosted fruits, frozen fruits, fruit-based snack food, fruit chips, fruit jellies, fruit peel, fruit, preserved, fruit preserved in alcohol, fruit pulp, fruit salads, fruit, stewed, fruits, tinned [canned (am.)], game, not live, gelatine, gherkins, ginger jam, ham, herrings, hummus [chickpea paste], isinglass for food, jams, jellies for food, kefir [milk beverage], kimchi [fermented vegetable dish], kumys [kumyss] [milk beverage], lard for food, lecithin for culinary purposes, lentils, preserved, linseed oil for culinary purposes, liver, liver pâté, lobsters, not live, low-fat potato chips, margarine, marmalade, meat, meat extracts, meat jellies, meat, preserved, meat, tinned [canned (am.)], milk, milk beverages, milk predominating, milk ferments for culinary purposes, milk products, milk shakes, mushrooms, preserved, mussels, not live, non-alcoholic egg nog, nuts, prepared, olive oil for food, olives, preserved, onions, preserved, oysters, not live, palm kernel oil for food, palm oil for food, peanut butter, peanuts, processed, peas, preserved, pectin for culinary purposes, piccalilli, pickles, pollen prepared as foodstuff, pork, potato chips, potato flakes, potato fritters, poultry, not live, powdered eggs, prawns, not live, preparations for making bouillon, preparations for making soup, preserved garlic, processed fish spawn, processed seeds, processed sunflower seeds, prostokvasha [soured milk], raisins, rape oil for food, rennet, ryazhenka [fermented baked milk], salmon, salted fish, salted meats, sardines, sauerkraut, sausages, sausages in batter, sea-cucumbers, not live, seaweed extracts for food, sesame oil, shellfish, not live, shrimps, not live, silkworm chrysalis, for human consumption, smetana [sour cream], snail eggs for consumption, soups, soya beans, preserved, for food, soya milk [milk substitute], spiny lobsters, not live, suet for food, sunflower oil for food, tahini [sesame seed paste], toasted laver, tofu, tomato juice for cooking, tomato purée, tripe, truffles, preserved, tuna fish, vegetable juices for cooking, vegetable mousses, vegetable salads, vegetable soup preparations, vegetables, cooked, vegetables, dried, vegetables, preserved, vegetables, tinned [canned (am.)], whey, whipped cream, white of eggs, yogurt, yolk of eggs, allspice, almond confectionery, almond paste, aniseed, aromatic preparations for food, artificial coffee, baking powder, baking soda [bicarbonate of soda for cooking purposes], barley meal, bean meal, bee glue, beer vinegar, binding agents for ice cream, bread, bread rolls, breadcrumbs, buns, cake frosting [icing], cake powder, cakes, candy, capers, caramels [candy], celery salt, cereal bars, cereal-based snack food, cereal preparations, cheeseburgers [sandwiches], chewing gum, chicory [coffee substitute], chips [cereal products], chocolate, chocolate-based beverages, chocolate beverages with milk, chocolate mousses, chow-chow [condiment], chutneys [condiments], cinnamon [spice], cloves [spice], cocoa, cocoa-based beverages, cocoa beverages with milk, coffee, coffee based beverages, coffee beverages with milk, coffee flavorings [flavourings], condiments, confectionery, confectionery for decorating Christmas trees, cookies, cooking salt, corn flakes, corn meal, corn, milled, corn, roasted, couscous [semolina], crackers, cream of tartar for culinary purposes, crushed barley, crushed oats, curry [spice], custard, dessert mousses [confectionery], dough, dressings for salad, edible ices, essences for foodstuffs, except etheric essences and essential oils, farinaceous foods, ferments for pastes, flavorings, other than essential oils, flavorings, other than essential oils, for beverages, flavorings, other than essential oils, for cakes, flourmilling products, fondants [confectionery], frozen yogurt [confectionery ices], fruit coulis [sauces], fruit jellies [confectionery], garden herbs, preserved [seasonings], ginger [spice], gingerbread, glucose for culinary purposes, gluten additives for culinary purposes, gluten prepared as foodstuff, golden syrup, groats for human food, gruel, with a milk base, for food, halvah, ham glaze, high-protein cereal bars, hominy, hominy grits, honey, husked barley, husked oats, ice cream, ice for refreshment, ice, natural or artificial, iced tea, infusions, not medicinal, ketchup [sauce], leaven, linseed for human consumption, liquorice [confectionery], lozenges [confectionery], macaroni, macaroons [pastry], malt biscuits, malt extract for food, malt for human consumption, maltose, marinades, marzipan, mayonnaise, meal, meat gravies, meat pies, meat tenderizers, for household purposes, mint for confectionery, molasses for food, muesli, mustard, mustard meal, natural sweeteners, noodle-based prepared meals, noodles, nutmegs, oat-based food, oat flakes, oatmeal, palm sugar, pancakes, pasta, pasta sauce, pasties, pastries, pastry, peanut confectionery, pepper, peppermint sweets, peppers [seasonings], pesto [sauce], petit-beurre biscuits, petits fours [cakes], pies, pizzas, popcorn, potato flour for food, powders for ice cream, pralines, preparations for stiffening whipped cream, puddings, quiches, ravioli, relish [condiment], rice, rice-based snack food, rice cakes, royal jelly, rusks, saffron [seasoning], sago, salt for preserving foodstuffs, sandwiches, sauces [condiments], sausage binding materials, sea water for cooking, seasonings, seaweed [condiment], semolina, sorbets [ices], soya bean paste [condiment], soya flour, soya sauce, spaghetti, spices, spring rolls, star aniseed, starch for food, stick liquorice [confectionery], sugar, sushi, sweetmeats [candy], tabbouleh, tacos, tapioca, tapioca flour for food, tarts, tea, tea-based beverages, thickening agents for cooking foodstuffs, tomato sauce, tortillas, turmeric for food, unleavened bread, unroasted coffee, vanilla [flavoring] [flavouring], vanillin [vanilla substitute], vegetal preparations for use as coffee substitutes, vermicelli [noodles], vinegar, waffles, wheat flour, wheat germ for human consumption, yeast, algae for human or animal consumption, algarovilla for animal consumption, almonds [fruits], aloe vera plants, animal fattening preparations, animal foodstuffs, aromatic sand for pets [litter], bagasses of cane [raw material], barley, beans, fresh, beet, berries, fresh fruits, beverages for pets, bird food, bran, bran mash for animal consumption, bred stock, bulbs, bushes, cereal seeds, unprocessed, chestnuts, fresh, chicory roots, chicory [salad], christmas trees, citrus fruit, cocoa beans, raw, coconut shell, coconuts, cola nuts, copra, crayfish, live, crustaceans, live, cucumbers, fresh, cuttle bone for birds, dog biscuits, draff, edible chews for animals, eggs for hatching, fertilised, fish, live, fish meal for animal consumption, flax meal [fodder], flowers, dried, for decoration, flowers, natural, fodder, fruit, fresh, garden herbs, fresh, grains [cereals], grains for animal consumption, grapes, fresh, groats for poultry, hay, hazelnuts, hop cones, hops, juniper berries, leeks, fresh, lemons, fresh, lentils, fresh, lettuce, fresh, lime for animal forage, linseed for animal consumption, linseed meal for animal consumption, lobsters, live, locust beans, maize, maize cake for cattle, malt for brewing and distilling, marc, marrows, mash for fattening livestock, meal for animals, menagerie animals, mushroom spawn for propagation, mushrooms, fresh, mussels, live, nettles, nuts [fruits], oats, oil cake, olives, fresh, onions, fresh vegetables, oranges, oysters, live, palm trees, palms [leaves of the palm tree], peanut cake for animals, peanut meal for animals, peanuts, fresh, peas, fresh, peppers [plants], pet food, pine cones, plant seeds, plants, plants, dried, for decoration, pollen [raw material], potatoes, fresh, poultry, live, residual products of cereals for animal consumption, rhubarb, rice meal for forage, rice, unprocessed, roots for food, rose bushes, rough cork, rye, sea-cucumbers, live, seed germ for botanical purposes, seedlings, sesame, shellfish, live, spinach, fresh, spiny lobsters, live, sugarcane, truffles, fresh, vegetables, fresh, vine plants, wheat, wheat germ for animal consumption, wreaths of natural flowers, yeast for animal consumption, aerated water, aloe vera drinks, non-alcoholic, aperitifs, non-alcoholic, beer, beer wort, cider, nonalcoholic, cocktails, non-alcoholic, essences for making beverages, extracts of hops for making beer, fruit juice, fruit nectars, non-alcoholic, ginger ale, grape must, unfermented, isotonic beverages, kvass [non-alcoholic beverage], lemonades, lithia water, malt beer, malt wort, milk of almonds [beverage], mineral water [beverages], must, non-alcoholic beverages, nonalcoholic fruit extracts, non-alcoholic fruit juice beverages, non-alcoholic honey-based beverages, orgeat, pastilles for effervescing beverages, peanut milk [non-alcoholic beverage], powders for effervescing beverages, preparations for making aerated water, preparations for making beverages, preparations for making liqueurs, preparations for making mineral water, sarsaparilla [non-alcoholic beverage], seltzer water, smoothies, soda water, sorbets [beverages], syrups for beverages, syrups for lemonade, table waters, tomato juice [beverage], vegetable juices [beverages], waters [beverages], whey beverages, alcoholic beverages (except beers), alcoholic beverages containing fruit, alcoholic beverages, except beer, alcoholic essences, alcoholic extracts, anise [liqueur], anisette [liqueur], aperitifs, arak [arrack], bitters, brandy, cider, cocktails, curacao, digesters [liqueurs and spirits], distilled beverages, fruit extracts, alcoholic, gin, hydromel [mead], kirsch, liqueurs, nira [sugarcane-based alcoholic beverage], peppermint liqueurs, perry, piquette, pre-mixed alcoholic beverages, other than beer-based, rice alcohol, rum, sake, spirits [beverages], vodka, whisky, wine; management of a retail store and or supermarket; retail store services in the field of fresh and prepared foods, cosmetics, cleaning supplies, beauty supplies, personal care products, pet products, pet food, tissues, toilet paper, napkins; and information, advisory and consultancy services relating to the aforesaid.

The application is accepted for the remaining services.

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.

SZABOLCS KISS