Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 04/12/2019

Liudmila Egorova

Via Solferino, 15,

I-28100 Novara

ITALIA

Application No:	018111010
Your reference:
Trade mark:	Start up Online
Mark type:	Word mark
Applicant:	Liudmila Egorova Via Solferino, 15, I-28100 Novara ITALIA

The Office raised an objection on 29/08/2019 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 29/08/2019, which may be summarised as follows:

‘Start up Online’ is an intermediate portal for investors and companies seeking investors (crowdfunding) or consulting services. It is not intended to help the relevant consumer to bring an online business into existence, nor to bring a business online into existence.

The applicant submitted a further reply on 14/11/2019, requesting limitations / amendments of the list of services. With regard to this limitations / amendments requested, the list of goods and services was amended and now reads as follows:

Class 35 Business consulting; Commercial consultancy; Business inquiries.

Class 36 Investment advisory services; Advisory services relating to investments; Valuation services; Capital investment consultation; Financing and funding services; Investment services; Brokerage services for capital investments; Advisory services relating to investment finance; Investment advice; Advice relating to investments; Financial information for investors; Providing investors with financial information.

Class 42 Technological advisory services; Quality control services; Quality control for others; Consultancy relating to quality control; Professional consultancy relating to technology; Advisory services relating to scientific research; Expert opinion relating to technology; Information technology consulting services.

Class 45 Legal services; Legal advice and representation; Legal information services; Legal advice; Legal services relating to business; Solicitors' services; Adoption agency services; Legal support services.

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 and to the amended list of services, 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.

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).

As already stated by the Office in the objection letter, the sign for which protection is sought, Start up online, would be perceived by the relevant English-speaking average consumer as a merely promotional / informative message, the purpose of which is to highlight positive aspects of the services concerned, namely that services as

• business / commercial consulting / consultancy / inquiries services (Class 35),

• investment / financial consultancy / advisory / funding / information services (Class 36),

• technological / quality control / consultancy / advisory / information services (Class 42),

• legal consultancy / advisory / information / support services (Class 45),

will help the relevant consumer to bring an online business into existence or to bring a business online into existence.

This assessment still applies to the amended list of services; the reasoning provided in the objection letter remains fully applicable. The reasoning also applies to intermediate portals for investors and companies seeking investors (crowdfunding) or consulting services since these services also (can) serve to bring an online business / a business online into existence.

The relevant public will not associate any meaning with the sign other than this promotional / informative one; it will not perceive any particular indication of commercial origin in the sign.

As regards the applicant’s argument that his business does not intend to help the relevant consumer to bring an online business into existence or to bring a business online into existence the Office recalls that

‘a word sign must be refused registration under Article 7(1)(b) EUTMR if one of its possible meanings will be perceived as being devoid of distinctive character (25/04/2013, T-145/12, Eco Pro, EU:T:2013, 220, § 34 and the case-law cited therein)’ [20/11/2019, R 1430/2019-2, The stabiliser people, § 31].

The actual use of the sign intended by the applicant is of no relevance in this respect.

For the abovementioned reasons, and pursuant to Article 7(1)(b) and 7(2) EUTMR, the application for European Union trade mark No 18 111 010 is hereby rejected for all the services claimed (according to the amended list of services):

Class 35 Business consulting; Commercial consultancy; Business inquiries.

Class 36 Investment advisory services; Advisory services relating to investments; Valuation services; Capital investment consultation; Financing and funding services; Investment services; Brokerage services for capital investments; Advisory services relating to investment finance; Investment advice; Advice relating to investments; Financial information for investors; Providing investors with financial information.

Class 42 Technological advisory services; Quality control services; Quality control for others; Consultancy relating to quality control; Professional consultancy relating to technology; Advisory services relating to scientific research; Expert opinion relating to technology; Information technology consulting services.

Class 45 Legal services; Legal advice and representation; Legal information services; Legal advice; Legal services relating to business; Solicitors' services; Adoption agency services; Legal support services.

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.

Thorsten Ickenroth