Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 08/03/2019

ABRIL ABOGADOS

C/Amador de los Ríos, 1-1°

E-28010 Madrid

ESPAÑA

Application No:	017895215
Your reference:	18/A/S064-4
Trade mark:	A LITTLE LOVE FOR YOUR HOME
Mark type:	Word mark
Applicant:	LIPPER INTERNATIONAL INC. 235 Washington Street Wallingford, Connecticut 06492 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 03/07/2018 pursuant to Article 7(1)(b) and Article 7(2) EUTMR because it found that the trade mark applied for is devoid of any distinctive character for the reasons set out in the attached letter.

The applicant submitted its observations on 31/08/2018, which may be summarised as follows:

1. The Applicant states that if a message requires a measure of interpretation on the part of the public and sets off a minimal cognitive process, it is to be declared distinctive.

2. In the case at hand, the message entails an emotion (love) which by definition only concerns human or living beings to objects (as stated in the definitions submitted by the Applicant).

3. The expression contains a play on words, which is to an extent, unexpected and surprising.

4. The expression “A LITTLE LOVE FOR YOUR HOME” clearly is not descriptive of the characteristics of the goods, nor is it descriptive of their market value, but instead, contains, an abstract message, joining two perfect opposites /HUMAN EMOTIONS and OBJECTS.

5. The Applicant claims that he is the owner of an identical mark registered in US, under registration Nr 87678303.

Pursuant to Article 94 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.

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; and 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 ; and 03/07/2003, T‑122/01, Best Buy, EU:T:2003:183, § 21).

As regards the Applicant’s first line of argument that if a message requires a measure of interpretation on the part of the public and sets off a minimal cognitive process, it is to be declared distinctive, in the Office’s view, this is not applicable to the case at hand. Indeed, the sign for which protection is sought, A LITTLE LOVE FOR YOUR HOME, would simply be perceived by the relevant public as a promotional laudatory slogan, the function of which is to communicate an inspirational or motivational statement to the consumer. In the present case, as already noted in our previous communication of 03/07/2018, the relevant public will not tend to perceive any particular indication of commercial origin in the sign beyond the promotional information conveyed by the mark at issue. Therefore, the Office is convinced that the sign A LITTLE LOVE FOR YOUR HOME does not require a measure of interpretation on the part of the relevant public and will not set off a minimal cognitive process. In this regard, the Office claims that the relevant English-speaking consumer would understand the sign as having a concrete meaning and will not tend to perceive any indication of commercial origin.

As regards the Applicant’s next line of argument that the message conveyed by the sign entails an emotion (love) which by definition (submitted by the applicant) only concerns human or living beings to objects, the Office does not dispute this argument. Indeed, in the Office’s view, the relevant consumer when choosing the applicant’s goods will feel that he pampers his house. In this sense, the relevant consumer will not tend to perceive any particular indication of commercial origin in the sign beyond the promotional information conveyed.

As regards the Applicant’s further line of argument that the expression contains a play on words, which is to an extent, unexpected and surprising, it must be noted that 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 so as to enable the relevant public to distinguish, without any possibility of confusion, the applicant’s goods from those of a different commercial origin.

(15/09/2005, T‑320/03, Live richly, EU:T:2005:325, § 84).

As regards the Applicant’s next line of argument that the expression “A LITTLE LOVE FOR YOUR HOME” is clearly not descriptive of the characteristics of the goods but contains and abstract message joining two perfect opposites terms (HUMAN EMOTIONS and OBJECTS), it must be noted that the Office has examined the Applicant’s sign pursuant Article 7(1)(b) and Article 7(2) EUTMR because the sign “A LITTLE LOVE FOR YOUR HOME” is devoid of any distinctive character in relation to the goods for which protection is sought, and not because it describes certain characteristics of the goods applied for. Therefore, in the Office’s view, this argument is not relevant for the case at hand.

Finally, as regards the national decisions 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 7(2) EUTMR, the application for European Union trade mark No 017895215 is hereby rejected for all the goods claimed.

According to Article 67 EUTMR, you have a right to appeal against this decision. According to Article 68 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.

Soledad PALACIO MONTILLA