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General Court: KAATSU rejected for descriptive character
In Case
T-567/12, Kaatsu Japan Co. Ltd filed the CTM application KAATSU for various
goods and services in Classes 9, 10, 16, 28, 41 and 44 of the Nice
Agreement.
The examiner considered
that the relevant public was the general public in Europe and that the sign
KAATSU could be understood in most European languages and the word was used to
describe a method of physical exercise. Therefore it rejected it for Class
9: ‘Scientific, measuring and teaching
apparatus and instruments; pre-recorded videotapes, compact disks (CDs), laser
disks (LDs), digital versatile disks (DVDs) and computer software; parts and
fittings for all the aforesaid goods’; Class 10: ‘Surgical, medical and
veterinary apparatus and instruments, orthopaedic articles; apparatus for
physical training for medical use; parts and fittings for all the aforesaid
goods’; Class 16: ‘Paper, cardboard
and goods made from these materials, not included in other classes; printed
matter; instructional and teaching material (except apparatus); parts and
fittings for all the aforesaid goods’; Class 28: ‘Gymnastic and sporting articles not included in other
classes; training and exercise equipment for fitness purposes; parts and
fittings for all the aforesaid goods’; Class 41: ‘Education; providing of training; entertainment;
sporting and cultural activities; educational services; providing seminars and
workshops; training instructors in the field of physical training;
qualification of instructors in the field of physical training; provision of
information, advisory and consultancy services in relation to all of the
aforesaid services’; Class 44:
‘Medical services; veterinary services; hygienic and beauty care for human
beings or animals; providing medical information; physical therapy services;
kinesitherapy services; provision of information, advisory and consultancy
services in relation to all of the aforesaid services’.
The Second Board of Appeal and the General Court dismissed the appeals. The
mark applied for related to an exercise method or technique which induces
muscle hypertrophy and increases muscle strength, essentially by applying a
controlled reduction of blood flow to the muscles exercised by means of
compressing the proximal vasculature and related areas, and the term ‘kaatsu’
referred to that method and informed the consumer directly and without the need
for further reflection on his part about the goods and services in question. The
mark applied for was neither merely suggestive nor allusive, but directly
descriptive of certain characteristics of the goods and services offered by the
applicant. Therefore the mark applied for is descriptive in character, within
the meaning of Article 7(1)(c) of Regulation No 207/2009. Furthermore,
the applicant had failed to show that the mark applied for had acquired
distinctiveness through use.
Tags: General court, absolute grounds, kaatsu, ,



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