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CARE TO CARE in General Court

In  Case T-68/13, Novartis AG filed in 2011 a CTM application for CARE TO CARE for the following services:  “ Class 41: ‘Educational services, including caregivers and patient’s relatives support program relating to alzheimer’s disease’; Class 42: ‘Medical services, including providing medical information to caregivers and patient’s relatives relating to alzheimer’s disease”.

Both the examiner and First Board of Appeal rejected the application on Absolute grounds finding that that the mark applied for was not distinctive within the meaning of Article 7(1)(b) of Regulation No 207/2009 (‘CTMR’) .

The relevant public as defined by the Board of Appeal (BoA), consists of professionals with a high level of attention and of the families of patients suffering from Alzheimer’s disease who are particularly well informed as to the seriousness and the effects of that disease.

The sign CARE TO CARE cannot be appropriate for the purpose of identifying the origin of the services which it designates and could not therefore perform the essential function of a trade mark. In particular, the sign applied for is a banal expression which refers plainly to the progressive change from one type of care to another and indicates to the relevant public the inherent nature of the educational and medical services covered by that sign. The Board of Appeal added that the message conveyed by the sign applied for was immediately intelligible to any consumer without further thought.

The Applicant appealed before the GC, claiming that that the Board of Appeal failed to comply with its obligations in respect of the burden of proof, inter alia that it did not assess the distinctive character of the mark applied for on the basis of facts, but on the basis of mere assumptions.

However, the General Court (`GC’) found that the BoA correctly relied on well-known facts and complied with Article 76 (1) CTMR which states that  OHIM examiners and BoA’s are required to examine the facts of their own motion. In this case, it is generally well known that Alzheimer’s disease is incurable and characterised by a progressive deterioration in the state of health of people who suffer from it. The symptoms of that disease usually develop slowly and gradually worsen over time, progressing from mild forgetfulness to widespread brain impairment. The treatment of such a disease requires a gradual adaptation of care, which may include, at certain times, the transfer of the person with the disease from hospital to his home and vice versa where there is a deterioration in the patient’s condition. The information to which the Board of Appeal referred in paragraph 21 of the contested decision is a fortiori well-known to the relevant public.

The word ‘care’ in English is both a noun and a verb meaning ‘care’ or ‘to look after’ respectively. In the field of health, that term designates the treatment given to a patient by a doctor or other health workers. Furthermore, as was also stated by the BoA, the word ‘care’ is the root of the word ‘carer’, which designates a person who looks after a sick person. It follows that that term is closely linked with the health sector.

Contrary to the applicant’s claims, the mark applied for does not possess the necessary degree of originality or resonance, requiring at least some interpretation.  The GC dismissed the appeal and confirmed that CARE TO CARE will be understood immediately by the relevant public as a slogan relating to the objective of the services covered by the mark applied for, namely the care required for patients suffering from Alzheimer’s disease. The mark applied for will not therefore be capable of indicating to the consumer the commercial origin of the services in question.


Posted by: Laetitia Lagarde @ 19.14
Tags: General Court, absolute grounds, Care to care, health,,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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