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General Court: HIPERDRIVE lacks distinctive character
In Case T- 95/13, Walcher Meßtechnik GmbH applied for the word mark HIPERDRIVE for the following goods in Class 7: "Adjusting or adjustment devices (except for land vehicles) to set or adjust the position, location or arrangement of a part or a tool". OHIM refused registration on the grounds that it was descriptive and lacked distinctive character according to Article 7 (1) b) and c) CTMR.
OHIM and the General Court found that for the English and German-speaking consumer, the original component part of the sign in question, namely the "hiper" element was included as the phonetic equivalent of "hyper" and, therefore, refered to something "exaggerated/ marked by excess." Pronunciation with the letter "i" or the letter "y" is the same in both cases.
Further, the word "drive" in German means "Antrieb" (command) "Schwung" (momentum) or "Dynamik" (dynamic) and the compound term taken in its entirety, which means "sehr starker / sehr guter Antrieb" (very high / very good order), refers directly to products used to set or adjust the position, location or arrangement of a part or a tool.
Contrary to what the applicant claims in its appeal brief, the reasoning of the Board of Appeal meets the criteria referred to in paragraph 26 of the judgment of 15 January 2013, BSH / OHIM (ecoDoor) (T-625 / 11, not yet published). In paragraph 26 of this judgment, the Court stated that "a sign is descriptive of a characteristic of a part incorporated in a product can also be descriptive of the same product." It also states at the same point:
"Such is the case when, in the perception of the relevant public, the characteristic of said part described by the sign is likely to have a significant impact on the essential characteristics of the product itself. Indeed, in this case, the relevant public assimilate immediately and without further reflection characteristic of the piece described by the sign to the essential characteristics of the product concerned. "
It is not necessary to refer to the most important characteristic of the product, but only one of its essential characteristics. In this case, what matters is that the characteristics that describe the command (very high / very good) may have, in the perception of specialized consumer, a significant impact on the essential characteristics of the products concerned which are devices to set or adjust the position, location or arrangement of a part or a tool.
This is also confirmed by the descriptions made by the applicant regarding its positioning systems and showing that control is an important aspect of the products. Therefore, the General Court rejected the appeal.
Tags: General Court, absolute grounds, HIPERDRIVE,
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