Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)

Alicante, 15/09/2020

Isabelle Bertaux

55 rue Ramey

F-75018 Paris

France

Application No:	18262815
Your reference:	IB-CT0337
Trade mark:
Mark type:	Figurative mark
Applicant:	Shenzhen Starble Electronic Commerce Co.Ltd. 2 Floor, Yun Li Intelligent Park No. 6 developed road, Bantian street, Gegang District, Shenzhen 518000 People’s Republic of China

The Office raised an objection on 03/07/2020 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 letters which form an integral part of this decision.

The applicant submitted its observations on 06/08/2020, in which it argued that despite the fact that the trademark can be perceived as meaning a head cook, it is not true that the sign in question is devoid of any distinctive character in relation to the goods which are not in relation to food/cooking. In particular, the sign cannot be a perceived as conveying a promotional laudatory message for the following products:

Class 7: Whisks, electric, for household purposes; Blenders, electric, for household purposes; Electric fruit juice extractors; Electric fruit squeezers; Juice machines; Beaters being electric appliances; Beaters, electric; Coffee extracting machines; Coffee grinders, other than hand-operated; Coffee mills [other than hand operated]; Electric milk frothers.

Class 11: Kettles; Electric panini makers; Coffee machines; Deep fat fryers (Electric).

Class 21: Graters [household utensils]; Dish drainers; dishcloths for washing dishes; Toothbrushes, electric; Vacuum mugs.

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 for the reasons set forth below.

The objection covered all the goods applied for, namely:

Class 7: Whisks, electric, for household purposes; Blenders, electric, for household purposes; Electric fruit juice extractors; Electric fruit squeezers; Juice machines; Kitchen grinders, electric; Beaters being electric appliances; Beaters, electric; Blenders for food [electric]; Coffee extracting machines; Coffee grinders, other than hand-operated; Bread knives (Electric -); Coffee mills [other than hand operated]; Electric milk frothers; Electric mixers for household purposes.

Class 11: Kettles; Air fryers; Electric kitchen ovens; Electric oven ranges; Electric ovens; Electric ovens for household purposes; Electric panini makers; Hot sandwich toasters; Bread makers; Coffee machines; Deep fat friers (Electric -); Deep fat fryers; Egg cookers; Multiple cooking plates; Oil-free electric fryers.

Class 21: Frying pan lids; Frying pans; Fruit presses, non-electric, for household purposes; Frying pans [non-electric]; Funnels; Funnels for kitchen use; Chinois [strainers]; Graters [household utensils]; Cutting boards for the kitchen; Cutlery trays; Dish drainers; Dishcloths for washing dishes; Toothbrushes, electric; Tableware; Vacuum mugs.

Since the applicant has focused its arguments on certain goods claimed, namely those listed above on page 1, it would appear that it has accepted rejection of the mark at issue for the remaining goods which it did not mention in its response. In any event, since the Office’s objection concerned all the goods, it is maintained that the sign at issue conveys an easily understandable promotional message as regards their high quality. With regard to the applicant’s arguments, it is recalled that the objection was based on the finding that the sign is a promotional laudatory term, the function of which is to communicate that the goods at issue are of such high quality that they are used by or recommended by/to head cooks. Since both the verbal and the figurative element of the sign indicate this promotional message, the combination of these elements will not be more than the mere sum thereof. Thus, the public will not tend to perceive any particular indication of commercial origin in the sign. It follows that the application is objectionable in relation to all the goods which may be of such high quality that head cooks may use them or which may be recommended by or to head cooks. This clearly applies to the goods in Class 7 and 11 (including those specified by the applicant in its observations and listed above on page 1) which are all kitchen machines directly used for preparing food or drink. The same applies to most of the goods objected to in Class 21 used for or in the process of cooking, or as auxiliary products. As for ‘grater’ specifically mentioned by the applicant in its observations summarized above on page 1, this is a kitchen tool which has a rough surface used for cutting food into very small pieces. Therefore, it is directly used for preparing food, and is thus equally objectionable.

Notwithstanding the foregoing, the Office has re-considered the objection in relation to ‘dish drainers; dishcloths for washing dishes; toothbrushes, electric; vacuum mugs’ and hereby waives the objection for these goods since their use is not directly related to preparation of food or drink.

On the basis of all the above, it is maintained that the sign applied for will not be perceived by consumers as pointing to the commercial origin of the goods objected to, on grounds that it is merely composed of verbal and figurative elements individually and together evoking an easily identifiable and understandable message aimed at lauding the high quality of the goods at issue.

Since the objection under 7(1)(b) was raised in relation to the German-speaking part of the European Union, the present objection applies to Germany, Austria and the Benelux where German is de jure official language.

For all the above reasons, and pursuant to Article 7(1)(b) and Article 7(2) EUTMR, the application for European Union trade mark No 18 262 815 is hereby rejected for part of the goods claimed, namely:

Class 7: Whisks, electric, for household purposes; blenders, electric, for household purposes; electric fruit juice extractors; electric fruit squeezers; juice machines; kitchen grinders, electric; beaters being electric appliances; beaters, electric; blenders for food [electric]; coffee extracting machines; coffee grinders, other than hand-operated; bread knives (electric -); coffee mills [other than hand operated]; electric milk frothers; electric mixers for household purposes.

Class 11: Kettles; air fryers; electric kitchen ovens; electric oven ranges; electric ovens; electric ovens for household purposes; electric panini makers; hot sandwich toasters; bread makers; coffee machines; deep fat friers (electric -); deep fat fryers; egg cookers; multiple cooking plates; oil-free electric fryers.

Class 21: Frying pan lids; frying pans; fruit presses, non-electric, for household purposes; frying pans [non-electric]; funnels; funnels for kitchen use; chinois [strainers]; graters [household utensils]; cutting boards for the kitchen; cutlery trays; tableware.

The application is allowed to proceed for the remaining goods claimed, namely:

Class 21: Dish drainers; dishcloths for washing dishes; toothbrushes, electric; vacuum mugs.

According to Article 66(2) EUTMR, you have a right to appeal against this decision which does not terminate the examination proceedings. 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 for appeal must be filed within four months of the same date. The notice of appeal will be deemed to have been filed only when the appeal fee of EUR 720 has been paid.

Ferenc GAZDA