EU court sinks TM application for cruise ship services
The EU General Court has today confirmed a European Union Intellectual Property Office’s (EUIPO) decision to reject a trademark application relating to cruise ship services.
US-based NCL Corporation, a subsidiary of cruise ship operator Norwegian Cruise Line, applied for the EU word mark ‘Feel Free’ at the EUIPO in 2016.
The trademark was applied for in relation to goods and services in class 39, which includes cruise ship services.
An examiner at the EUIPO rejected the application on the ground that the mark was devoid of any distinctive character.
The examiner said that the words ‘Feel Free’ are perceived by the relevant public as an advertising slogan related to NCL’s services and convey the feeling of freedom.
The EUIPO’s Fourth Board of Appeal dismissed NCL’s appeal against the decision in 2017, concluding that the examiner was correct to find that the sign was devoid of any distinctive character.
NCL argued before the General Court that a “minimum of distinctiveness” is sufficient to determine if a sign can be registered. It said that the appeal board had “applied a criterion which was too strict by requiring an increased distinctiveness”.
According to the cruise line operator, the applied-for mark is memorable as it involves an alliteration, the two words have the same number of letters and both words contain a double ‘e’.
It also said that the words would evoke “pictorial associations” of vacation, freedom and adventure, resulting in a connection between the applied-for mark and the claimed services.
NCL accused the appeal board of incorrectly finding that the applied-for trademark was an advertising slogan and subsequently adopting a stricter approach to measure distinctiveness.
The General Court said that trademarks consisting of advertising slogans cannot be considered as distinctive if they can only be perceived by the relevant public as a publicity claim.
It added that the appeal board did not “derive the lack of distinctive character” based solely on the fact that it may be perceived as an advertising slogan.
According to the court, the board also looked at the intrinsic properties of the trademark and concluded that these properties do not allow the trademark to be perceived as an indication of origin.
NCL’s arguments and appeal were dismissed by the General Court, and it ordered NCL to pay the costs.
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