Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 30/10/2019

COHAUSZ & FLORACK Patent- und Rechtsanwälte Partnerschaftsgesellschaft mbB

Bleichstr. 14

D-40211 Düsseldorf

ALEMANIA

Application No:	018039121
Your reference:	190414EU
Trade mark:	smart motion
Mark type:	Word mark
Applicant:	LG ELECTRONICS INC. 128, Yeoui-daero, Yeongdeungpo-gu Seoul 150-721 REPÚBLICA DE COREA (LA)

The Office raised an objection on 07/06/2019 pursuant to Article 7(1)(b), (c) and Article 7(2) EUTMR because it found that the trade mark applied for is not eligible for registration, for the reasons set out in the attached letter, which forms an integral part of this decision.

The Office took the view that the relevant English-speaking consumers would understand the sign as being formed by two words which meanings can be supported by the following dictionary references:

SMART ‘A smart device is able to do many of the things that a computer does, for example to connect to the internet and use software.’

MOTION ‘Motion is the activity or process of continually changing position or moving from one place to another. A motion is an action, gesture, or movement.’

(information extracted from Collins English Dictionary online on 07/06/2019 at

https://www.collinsdictionary.com/).

The relevant consumers would perceive the sign as providing information that the goods in question, such as washing machines and other machines, their parts and accessories in Class 7, smartphones and other devices, including application software in Class 9, air conditioners and other apparatuses in Class 11, are either equipped by smart motion functions (the equipment has a certain level of technology which aids in adapting the motion of the machine in function with the task required. The motion of the machine will be adapted to e.g. each load in case of washing machine), are operated by smart motion (the equipment has a certain level of technology which operates the machine in accordance with motion, gesture, etc., and application software can allow users to operate machines by motion), or react to detected motion (the equipment has a certain level of technology which in accordance with detected motion changes different parameters of the equipment – e. g. air conditioner in accordance to detected motion changes intensity of its performance and by that allows different day and night regimes and saves the energy). Therefore, the sign describes the kind and characteristic of the goods in question.

Given that the sign has a clear descriptive meaning, it is also devoid of any distinctive character and therefore objectionable under Article 7(1)(b) EUTMR, as it is incapable of performing the essential function of a trade mark, which is to distinguish the goods or services of one undertaking from those of other undertakings.

Consequently, taken as a whole, the sign for which protection is sought is descriptive and devoid of any distinctive character, and is not capable of distinguishing the goods to which an objection has been raised within the meaning of Article 7(1)(b), (c) and 7(2) EUTMR.

With the notice the applicant was given opportunity to submit observations in reply. 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.

The applicant failed to submit observations within the time limit. Consequently further argumentation is superfluous. For the reasons set out in the letter of objection, and pursuant to Article 7(1)(b), (c) and Article 7(2) EUTMR, the application for the European Union trade mark in question 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.

Jiri JIRSA