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Category Archives: Decisions
This is a quite recent case of the Forth Board of Appeal of 7 August 2015 (Case R2898/2014-5), in connection, we would say, again, with descriptive/non distinctive Community trademarks.
AAL Association(AALA) sought to register the wordmark AAL Active and AssistedLiving for a huge list of goods and services in classes 16, 35, 36, 38, 41 and 42 but the mark was considered not eligible for registration pursuant to Article 7(1)(b) and (c) CTMR in conjunction with Article 7(2) CTMR.
Basically, the Examiner and also the Forth Board of Appeal found that the sign is descriptive since “the relevant English-speaking public will immediately understand the word combination ‘Active and Assisted Living’ as referring to an active and assisted life or lifestyle. Moreover, the letter combination ‘AAL’ will be perceived merely as an abbreviation of the subsequent words ‘Active and Assisted Living’, giving for the goods and services at issue direct information about the kind and intended purpose of them”.
In this case it may also be argued that the proposed mark is not ACTIVE AND ASSISTED LIVING per se and that the presence of AAL should avoid the descriptive connotation of the whole mark. But this is not true: according to the constant jurisprudence of the Community office “the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Thus, in order to assess whether or not a trade mark is eligible for registration, the overall impression given by it must be considered, which may however mean first examining, in that overall assessment, each of the individual components of which that mark is composed”.
The mark has also been found not distinctive since incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer to repeat the experience if it proves to be positive,or to avoid it if it proves to be negative, on the occasion of a subsequent acquisition.
In fact, according to the Office, the sign ‘AAL Active and Assisted Living’ will be perceived as a purely laudatory statement that all contested goods and services are aimed at assisting the consumers to live an active and independent life as long as possible.
Now, while choosing your mark, bear in mind that the juxtaposition of a two descriptive elements is not enough to avoid a refusal and that it is necessary that your mark possess originality and resonance (there should be a minimal interpretation by the public or the mark has to trigger some cognitive process in the minds of that public).
And, needless to say, if you are not able to understand if a mark is eligible for registration or not, you need the advice on a trademark expert!!