WEDNESDAY, 26 NOVEMBER 2014
Youth experts in General Court
In case T-484-13, Finnish company Lumene Oy extended its international registration for the mark YOUTH EXPERTS for various goods in Classes 3 and 5, namely: Class 3: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’; Class 5: ‘Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides’. OHIM's examiner rejected the trademark for most, but not all, goods.
The applicant filed an appeal before the Boads which held that the trade mark applied for was unsuitable as an indication of the commercial origin of all the goods in Classes 3 and 5.
The General Court agreed with the substantive reasoning which can be summarized as follows.
First of all, as regards the relevant public, as the trade mark applied for consisted of elements from the English language, the relevant public was the English-speaking public or even a public that is not English-speaking but which has a sufficient grasp of basic English. Thus the target public included, in addition to the relevant public of the United Kingdom, Ireland and Malta, at least that of Cyprus, Sweden, Denmark, Finland and the Netherlands. In addition, all the goods covered by the trade mark applied for were directed at both the public at large and professionals in the medical field. However, referring to the case-law of the General Court, the Board of Appeal noted that the level of attention of the relevant public was relatively low with regard to promotional indications (see, to that effect, judgments of 9 July 2008 in BYK-Chemie v OHIM (Substance for Success), T‑58/07). Next, as regards the perception of the sign at issue by the relevant public, the sign consisted of the English words ‘youth’ and ‘experts’ and represented, conceptually, a promotional indication or slogan. It consists of an expression that is not grammatically correct, that is not imaginative, surprising or unexpected, that does not constitute a play on words and that does not have a certain originality and resonance making it easy to remember. On the contrary, the sign will be understood as a self-explanatory laudatory message that the applicant’s goods were designed, produced or made by young experts with an extensive knowledge in the relevant field, which would reassure the consumer as to the quality of the goods in question, those goods being based on an improved formula or recently developed, for example. Thus the trade mark applied for is a banal slogan with a clear and unambiguous laudatory meaning that would not be perceived by the relevant public as an indication of the commercial origin of the goods concerned, but as purely promotional information. In addition, the Board of Appeal stated that the relevant public was accustomed to seeing advertisements vaunting the improved effectiveness of the contested goods and that it was therefore not surprising that slogans using terms such as ‘youth’ and ‘experts’ were commonly used for marketing purposes, whether in the cosmetics and beauty care sector, in the pharmaceutical industry and healthcare.
However, the GC annulled the decision because the Board of Appeal was legitimately seised of the appeal only to the extent that the lower authority had rejected the applicant’s claims (see judgment in NEO, EU:T:2013:343, paragraph 25). It follows that the Board of Appeal exceeded the limits of its powers in so far as it re-opened of its own motion the examination, in the light of the absolute grounds for refusal set out in Article 7 of Regulation No 207/2009, of the application for registration of a CTM in respect of the non-contested goods covered by that application and in so far as it found that the trade mark applied for was, for the purposes of Article 7(1)(b) of that regulation, devoid of any distinctive character such as to enable those non-contested goods to be distinguished. The contested decision was therefore be annulled to the extent that the trade mark for which registration was sought was declared devoid of any distinctive character, for the purposes of Article 7(1)(b) of CTM, in relation to the non-contested goods, in respect of which the examiner had allowed registration.
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