Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 17/07/2020

GILBEY LEGAL

43, Boulevard Haussmann

F-75009 Paris

FRANCIA

Application No:	018195120
Your reference:	20200069
Trade mark:	BOOST GEL
Mark type:	Word mark
Applicant:	ALTICOR INC. 7575 Fulton Street East Ada, Michigan 49355-0001 ESTADOS UNIDOS (DE AMÉRICA)

The Office raised an objection on 07/04/2020 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.

In the present case, the relevant consumers would perceive the sign as providing direct information that the goods are dietary and nutritional supplements in all forms, including gel drink and chewable form, that are to enhance or improve one’s physical, mental or emotional condition or give energy. Therefore, the sign describes the kind and intended purpose 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) and (c) and Article 7(2) EUTMR.

The applicant failed to submit observations within the time limit. 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 European Union trade mark No 18195120 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.

Erkki Münter