The General Court has found that the word mark SCATTER SLOTS is non-distinctive for and descriptive of Class 41 services including electronic games services provided by means of the internet; electronic games services, including provision of computer games on-line or by means of a global computer network, Articles 7(1)(b), (c) EU Trade Mark Regulation.
Case reference: Murka Ltd v EUIPO (T-704/16) of 17 October 2017, link here.
The General Court agreed with the EUIPO's Board of Appeal that when considered as a whole, the neologism "scatter slots", in view of the Class 41 services concerned," which consist, in particular, of betting or gaming, clearly and unequivocally means ‘services connected with gambling machines characterised by the “scatter” function". The sign was "not merely evocative or suggestive, but describes the actual subject matter of the services covered by that mark, namely services connected with gambling machines characterised by the 'scatter' function.", Article 7(1)(c) EU Trade Mark Regulation.
With regard to Article 7(1)(b) EU Trade Mark Regulation objection, the court reiterated that it was "clear from the wording" of Article 7(1) EU Trade Mark Regulation that "it was is sufficient that one of the absolute grounds for refusal listed in that provision applies for the sign in question to be ineligible for registration as an EU trade mark", (citing Indorata-Serviços e Gestão v OHIM, C-212/07 P, BSH v OHIM, C-126/13P).
Finally, the General Court rejected the trade mark applicant's evidence of acquired distinctiveness through use, Article 7(3) of the EU Trade Mark Regulation.
The Court found that the evidence provided by the applicant did "not in any way make it possible to establish the situation as at the date on which the mark applied for was filed. They show only that there was some use of that mark after the filing date." The Court thus in this context rejected an affidavit filed by the applicant in conjunction with the aforementioned evidence, which was drawn up by the applicant’s director and which therefore was not to be regarded "as reliable and credible as a declaration by a third party or a person who is unconnected with the company in question. The affidavit is not, on its own, sufficient and is merely an indication which needs to be confirmed by other evidence" (citing Reber v OHIM — Klusmeier (Wolfgang Amadeus Mozart PREMIUM), T-530/10, Henkell & Co. Sektkellerei v EUIPO — Ciacci Piccolomini d’Aragona di Bianchini (PICCOLOMINI), T-20/15)).
Comment: while this is a fairly standard decision on Articles 7(1)(b), (c) EU Trade Mark Regulation, it provides some helpful reminders on the evidence required in the context of acquired distinctiveness and the relationship between the absolute grounds of refusal under Articles 7(1)(b), (c) EU Trade Mark Regulation.