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General Court: Rauschbrille or drunk spectacles lack distinctiveness

In Case T-319/14, Drogenhilfe Projekt Köln gGmbH applied for the word CTM Rauschbrille for the following goods and services : Class 9: "Glasses";  Class 41: 'Education; training; entertainment; sporting and cultural activities "; Class 44: 'Medical services; services of a psychologist; clinical services; Medical clinic service; sanatoriums services; detoxification for drug addicts; health advice; therapeutic services”.

ang_rausch_03.jpg (300~209)Both OHIM and the General Court rejected the CTM application on the basis of Article 7, paragraph 1, b) and c) of Regulation No 207/2009 on the grounds that the mark was descriptive for those goods and services nor distinctive.

The relevant public consists of the German average consumers with a medium-high degree of attention. The applied for sign is composed of two terms of the German language, ie, on one hand, "Rausch" meaning drunkenness or intoxication or delirium and, on the other hand, "brille" meaning a frame with branches and two polished or colored glasses, such as ski goggles, diving or night vision. Thus, as to the "glasses" in Class 9, the German term "Rauschbrille" could be understood as "spectacles making one drunk" or " glasses protecting from drunkenness." It is apparent from the website of the applicant that this term actually refers to goggles that simulate approximately a high blood alcohol level.

Further, the German neologism "Rauschbrille" is not a fancy term, but is composed of exactly two words forming its elements. The word as a whole would not have a meaning beyond the sum of such terms, so it would be limited to describe the products and services concerned. Therefore, the mark is descriptive of the "glasses" in class 9 within the meaning of Article 7, paragraph 1 c) of CTMR.

As regards the absolute grounds for refusal under Article 7, paragraph 1 b) of CTMR,  the "glasses" in Class 9 are glasses recreating the intoxication state or placing the wearer in an artificial intoxication state. As regards the services in Class 41, the German term "Rauschbrille" could easily describe or refer to cultural events based on the theme of drugs. As for the services in Class 44, this term would convey the idea that as part of a medical and psychological treatment, the product sold under this name, is used to simulate intoxication and therefore part of an "aversion therapy". Moreover, those glasses are used as tool in courses in school or driving school on the theme of prevention of alcoholism and drug addiction, or as more complex tool as part of sports games and games of skill, so that sign could easily designate cultural events based on the theme of drugs or be construed as a reference to them. Thus the sign also lacks distinctive character.


Posted by: Laetitia Lagarde @ 09.52
Tags: general court, absolute grounds, Rauschbrille ,
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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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