THE FACTS:
The applicant sought to register the figurative mark LIEBLINGSWEIN for goods and services in Classes 21, 33 and 43. The examiner refused the application pursuant to Article 7(1)(b), (c) and (g) and Article 7(2) CTMR.
The Board of Appeal (BoA) dismissed the appeal. It held that the relevant German-speaking public associated the term ‘LIEBLINGSWEIN’ with the meaning ‘wine which one prefers to drink/consume’. It would not consist of an unusual neologism but be perceived as a concrete and promotional message that the wine must be regarded as ‘favourite wine’. Moreover, the sign was held to be deceptive for goods that are not related to wine.
The applicant filed an action before the General Court (GC), relying on three pleas in law: (i) infringement of Article 7(1)(c) EUTMR, (ii) infringement of Article7 (1) (b) and (iii) infringement of Article 7(1)(g) EUTMR in conjunction with Article 7(2). The GC dismissed the action.
SUBSTANCE:
(i) Infringement of Article 7(1)(c) AND ARTICLE 7(2) EUTMR. The relevant public consists of German-speaking general and professional consumers, whose level of attention is average (not disputed) (para. 28).
The sign is perceived by the relevant public, in the context of the goods in Class 21, as an indication that those goods relate to their favourite wine or are intended for use with it (para. 38). All the goods claimed in Class 33 are wines, contain wine, are made from wine or can be mixed particularly well with wine (para. 41). In the context of the services in Class 43, the relevant public perceives the sign as an indication that their favourite wine is served or that such a good wine is offered that they would choose this wine as their favourite wine in future (paras 45 and 48). The minimalist figurative elements are merely decorative (para. 52).
The overall impression created by the combination of the word and figurative elements of the sign is not sufficiently distant from the descriptive and clear message of the word elements. Thus the sign is descriptive for the goods and services (para. 53).
(ii) and (iii) Infringement of Article 7(1)(b) and (g) and ARTICLE 7(2) EUTMR. The pleas are rejected as ineffective since one absolute ground for refusal is sufficient (paras 56-61 and 62-64).
Source: Alicante news
