Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 25/08/2020

Lorena Salas

Avinguda Santa Creu de Calafell, 137 2º 1ª

E-08850 Gavà

ESPAÑA

Application No:	018247500
Your reference:
Trade mark:	Dates&Avocados
Mark type:	Word mark
Applicant:	Lorena Salas Avinguda Santa Creu de Calafell, 137 2º 1ª E-08850 Gavà ESPAÑA

The Office raised an objection on 06/06/2020 pursuant to Article 7(1)(b), (c), (g) 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 trade mark was partially found not eligible for registration because the relevant consumers would perceive the sign as providing information that the goods contain dates and avocados. Therefore, the sign describes some ingredients, and the flavour of the goods in question.

Furthermore, the sign for which protection is sought would clearly be deceptive when used in connection with “Blueberry pies; Plum-cakes; Pies containing vegetables; Vegetable pies” in Class 30, as it conveys clear information indicating that the products designated under this sign are made of or contain dates and avocados, whereas the goods to which an objection has been raised in reality cannot have these characteristics. Therefore, there is a sufficiently serious risk that the relevant public will be deceived as regards the ingredients or flavours of the goods in question.

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), (g) and Article 7(2) EUTMR, the application for European Union trade mark No 18 247 500 is hereby rejected for the following goods:

Class 30 Cakes; Bakery goods; Chocolate; Chocolate based products; Chocolate-based spreads; Chocolate desserts; Tablet (confectionary); Cereal bars; Cereal cakes for human consumption; Chocolate-coated bars; Muesli bars; Oat bars; Snack bars containing a mixture of grains, nuts and dried fruit [confectionery]; Almond cake; Almond cookies; Almond pastries; Biscuits; Biscuits containing chocolate flavoured ingredients; Biscuits containing fruit; Biscuits for human consumption made from cereals; Biscuits having a chocolate coating; Brownies; Chocolate brownies; Cake Pops; Cake bars; Cheesecakes; Chocolate biscuits; Chocolate cakes; Chocolate caramel wafers; Chocolate covered cakes; Chocolate pastes; Chocolate pastries; Christmas puddings; Cookie mixes; Covered tarts; Cream cakes; Ice cream cakes; Cupcakes; Danish pastries; Deep chocolate cake made with chocolate sponge; Doughnuts; Edible wafers; Fresh pasties; Fresh pies; Frozen cakes; Frozen pastries; Fruit cake snacks; Fruit cakes; Fruit filled pastry products; Half covered chocolate biscuits; Iced cakes; Iced fruit cakes; Macaroons [pastry]; Meringues; Prepared desserts [pastries]; Steamed sponge cakes (fagao); Tart shells; Tarts; Tarts [sweet or savoury]; Vegan cakes; Chocolate-based beverages; Chocolates; Cocoa-based beverages; Kombucha; Preparations for making beverages [chocolate based]; Preparations for making beverages [cocoa based]; Preparations for making beverages [coffee based]; Prepared cocoa and cocoa-based beverages; Preparations based on cocoa; Powdered preparations containing cocoa for use in making beverages; Cereal-based savoury snacks; Cereal based meal replacement bars; Cereal-based snack food; Crepes; Crumble; Pies [sweet or savoury]; Confectionery ices; Confectionery in frozen form; Edible fruit ices; Frozen confectionery containing ice cream; Frozen custards; Frozen dairy confections; Frozen lollipops; Frozen yogurt confections; Frozen yogurt cakes; Frozen yogurt pies; Fruit flavoured water ices in the form of lollipops; Fruit ice bars; Fruit ices; Ice beverages with a chocolate base; Ice beverages with a cocoa base; Truffle ices; Vegan ice cream; Soya based ice cream products; Soy based ice cream substitute; Cereals; Doughs, batters, and mixes therefor; Dried and fresh pastas, noodles and dumplings; Aromatic preparations for cakes; Aromatic preparations for pastries; Baking spices; Food preparations based on grains; Foodstuffs made from dough; Preparations for making bakery products; Organic thickening agents for cooking foodstuffs; Dulce de leche; Natural sweeteners; Sugar substitutes; Condiments; Sauces for ice cream; Blueberry pies; Plum-cakes; Pies containing vegetables; Vegetable pies.

The application may proceed for the remaining goods and services:

Class 30 Cocoa; Almond flour; Coconut meal for human consumption; Biological honey for human consumption; Vanilla.

Class 35 Business assistance, management and administrative services; Advertising, marketing and promotional services; Business consulting; Retail services relating to food.

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.

Anne-Lee KRISTENSEN