Through a decision dated 22 January 2014 EUIPO’s
Second Board of Appeal confirmed the refusal of the application for the
trademark
![]() |
EU Trademark No. 011253044 (Refused) |
which had been filed for a broad range of goods and
services in classes 9, 35, 39, 40, 41, 42 and 45.
The reason for the refusal is that EUIPO found that
the mark was devoid of distinctive character and that it merely informed
consumers of the quality of all the goods and services at issue, without
exception. The Office thus adopted a general reasoning in respect of all of
them.
This decision was annulled by the General Court (case T-222/14 (in Spanish) which,
after considering whether the Office had examined in sufficient depth the
distinctive character of the sign at issue in relation to all the goods and
services for which the application had been filed, held there to be a flaw in
the reasoning of the Board of Appeal.
The appeal to the Court of Justice (case C-437/15P) therefore centered
on the question of whether EUIPO should assess the capacity of a sign to
identify a given business origin with
respect to each and every one of the goods or services, or whether, on the
other hand, a global analysis of the goods or services will suffice if the
Office finds them to have some relevant characteristic in common.
As we are all aware, EUIPO is under an obligation to
state the reasons for its decisions, in order that the interested parties may
know why their trademark is being refused access to the register and also that
the courts of the EU may be in a position to oversee the legality of the
decision.
When a trademark application is filed, the Office
should indeed carry out an assessment of the capacity of the sign in question
to distinguish the goods and services it covers. This will entail, in
principle, an analysis of each and every one of those goods and services.
However, an exception to this rule arises when the goods and services are
interlinked in a sufficiently direct and specific way, to the point where they
may be grouped in homogeneous categories. In that event the Office may confine
its assessment to each of those categories.
The General Court relied on the order of 18 March 2010
(in case C-282/09P) to distinguish different categories into which the goods
and services of the rejected mark could be grouped (cinema, advertising,
storage and transport of goods, etc.), maintaining that they were very
different in their nature, characteristics and purpose and that the Office
should therefore at least have analyzed each of the homogeneous categories
within the application.
EUIPO’s position, in contrast, was that
if all the goods and services have a characteristic in common, which in the
present case would be that they are all of superior quality, they may be
regarded as forming a single category and, therefore, a general statement of
reasons will suffice. The systematic repetition of the basic ground for the
refusal, which is that the sign is devoid of distinctive character in respect
of each and every one of the goods and services, may thus be avoided.
The Court of Justice annulled the judgment of the
General Court, holding that the latter should have:
1. Checked whether the mark applied for, which comprises
a word and a figurative element, could be perceived, directly and immediately,
as a claim of superior quality or a laudatory message, rather than as an
indication of the business origin of the goods and services. In the
affirmative, the refusal of the application would be fully justified without
the need for an examination of the sign in relation to all of the goods and
services.
2. Checked whether the word element of the sign,
“deluxe”, indeed conveyed the idea of superior quality or whether it could have
a different meaning. In the latter event the mark could have a sufficient
degree of distinctive character in respect of some of the goods or services. In
that case an assessment of each of them would be required and different
conclusions could be reached.
The Court of Justice held that the General Court had
failed to appreciate that, despite their differences, all the goods and
services at issue could have a common characteristic relevant to the analysis
of the absolute prohibitions on registration which could justify their being
grouped in a single homogeneous category and the consequent use of general
reasoning in relation to them all.
The case has been referred back to the General
Court and we shall therefore have to wait for a final decision on the
substance.
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