In case T-203/14 Mo Industries applied for the following sign for Class 18: ‘Backpacks; book bags; sports bags; wallets; handbags; purses; tote bags; umbrellas; brief-case type portfolios; toiletry bags sold empty; cosmetic bags sold empty; shaving kit bags, sold empty; attaché cases; briefcases; satchels; duffel bags; luggage; garment bags for travel; billfolds; tie cases; key cases; diaper bags; shoulder belts; covers for electronic devices’ and Class 25: ‘Belts’
OHIM and the General Court held that the trade mark applied for was descriptive and devoid of any distinctive character for the purposes of Article 7(1)(b) and (c) of Regulation No 207/2009.、
First, the goods in question are aimed at the general public and the distinctiveness of the trade mark applied for had to be assessed by reference to the English-speaking public in the EU.
Secondly, the figurative sign containing the word element ‘splendid’ is an indication descriptive of the goods concerned for the purposes of Article 7(1)(c) of CTMR. The applied for sign is composed of an ordinary word in English which means, inter alia, ‘grand’, ‘spectacular’, ‘superb’ or ‘gorgeous’. Accordingly, ‘splendid’ refers clearly to goods the appearance of which presents such qualities. That word element is therefore laudatory for the sake of advertising, the purpose being to highlight the positive qualities of the goods for the presentation of which that element is used.
Moreover, by contrast with everyday consumer products in respect of which aesthetic qualities are not essential, the products covered by the mark applied for in the present case are clearly among those the appearance of which could be described as ‘splendid’.Thus, the word element of the mark applied for will be perceived immediately by the relevant public as a promotional formula which indicates to consumers that the goods covered by the mark are aesthetically superior to competing products (see Best Buy Concepts v OHIM (BEST BUY), T‑122/01).
Thirdly, for the goods in question, that sign is devoid of any distinctive character within the meaning of Article 7(1)(b) of the regulation. The fact that the mark applied for contains, in place of the dot over the letter ‘i’, a figurative element which is a registered Community trade mark is not conclusive for the purposes of assessing the distinctive character of that mark as a whole. Even misspellings are not generally conducive to overcoming refusal of registration stemming from the fact that the content of the sign is immediately comprehensible as eulogistic or laudatory (see FTI Touristik v OHIM (BigXtra), T‑81/13).
Fourthly, the applicant had not shown that the trade mark applied for had acquired distinctive character through use. Thus the exception provided for in Article 7(3) of Regulation No 207/2009 was not applicable.
Finally, the Court rejected the alleged infringement of the principles of equal treatment and of sound administration claimed by the applicant on the ground that mark applied for has not received the same treatment as CTM’s of which it is already the proprietor for goods in Class 25, which contain the word element ‘splendid’ or the term ‘splendid’. .
The Court held there are certain differences between the goods covered by the applicant’s earlier marks and those covered by the mark applied for which were pointed out by the Board of Appeal. Furthermore, in the application, the applicant acknowledges that those goods are not identical and claims solely that they are closely related. In addition, it must be pointed out that the trade marks of which the applicant is already the proprietor are not strictly identical to the mark applied for in the present case. Indeed it is well-established case-law that CTM examination must be undertaken in each individual case.