In Case T-499/13, nMetric LLC applied for  SMARTER SCHEDULING for the following goods in Class 9 ‘Business management systems, namely, suite of computer programs for use in the scheduling, planning, coordination, and execution of business, engineering, manufacturing, services, projects and/or supply chain activities which may include, order management, inventory management, resource allocation, and management, manufacturing processes and management, services coordination and management, maintenance coordination and management, project and portfolio coordination and management, logistics, data analysis and management”

The relevant public is composed of attentive and observant professionals, who would none the less perceive the term ‘smarter scheduling’ in the same way as those members of the general public who have knowledge of the English language.

The definitions of ‘smarter’ and ‘scheduling’ relate directly to the goods covered by the trade mark applied for, which are supposed to make smart scheduling easier.  As OHIM observed, the applicant’s website (www.nMetric.com) clearly indicates — through the use of expressions such as ‘schedule more effectively and more realistically’ or ‘schedule faster and more easily’, which give direct information on the nature of the goods concerned — that one of the main characteristics of the software covered by the trade mark applied for is to make the job of scheduling easier.

A trade mark consisting of a banal expression which merely makes a claim about the merits of the goods on which it is displayed is unlikely to serve as an indication of commercial origin. Accordingly, the term ‘smarter scheduling’ contained no fanciful element which, beyond its obvious promotional meaning, might enable the relevant public to memorise it easily and instantly as a distinctive mark for the goods concerned.

Thus the General Court confirmed that OHIM rightly rejected the trade mark application on the grounds it is devoid of distinctive character for the purposes of Article 7(1)(b) of CTMR.