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21 March 2018Trademarks

EU court upholds EUIPO’s rejection of 'dating bracelet' TM

The EU General Court has upheld the European Union Intellectual Property Office’s (EUIPO) refusal to register a figurative sign based on its descriptive character.

The Second Chamber of the court delivered its judgment yesterday, March 20.

In August 2015,  Webgarden Szolgáltató és Kereskedelmi Kft, a Hungarian web development company, applied to register a figurative mark with the EUIPO. The mark depicted a red pattern in the shape of two hearts, next to the words “Dating Bracelet” in blue text.

The applied-for mark covered classes 9, 41, 42, and 45, including data processing apparatus (such as chips and computer software), nightclub services (such as party planning and provision of entertainment information), web server services (such as site hosting and IT consulting), and online networking sites (such as online dating services).

In February 2016, an examiner rejected the application. This decision was upheld by the EUIPO’s Fifth Board of Appeal in March 2017.

The board considered the words “dating” and “bracelet” and found that they refer to a "romantic rendezvous bracelet" or a "bracelet to organise meetings, to go out with someone".

Ultimately the figurative elements of the mark reinforced the meaning of the word elements, and so the board concluded that the mark had a descriptive character for all products and services it covered.

Webgarden appealed against the decision to the EU General Court.

The Hungarian company argued that the EUIPO had segmented the mark by separating the word elements from the figurative ones, therefore neglecting to examine the overall impression of the applied-for mark. The court disagreed, and held that the board had “correctly examined” the mark as a whole.

In addition, Webgarden claimed the mark as a whole is not descriptive and that it has a distinctive character. The company argued that consumers would associate the phrase “dating bracelet” with a physical object, rather than the goods and services covered by the mark.

None of the IT elements covered by the applied-for classes directly or indirectly refer to the terms ‘dating’ and ‘bracelet’, Webgarden explained. It also added that services related to entertainment are not necessarily linked to dating or companionship.

The court again disagreed. It said the elements “dating” and “bracelet”, taken separately as well as together, are sufficiently related to the services covered.

Consumers will perceive “dating bracelet” to mean bracelets intended to be worn in entertainment venues, which could be connected with electronics or computer chips to allow for networking, the court said.

The court concluded that, given the “direct and concrete link” between the meaning of the mark and the goods and services it covers, it is “obvious” that the public will understand the mark to be an indicator of its related products.

Accordingly, it affirmed the board’s decision and ordered Webgarden to pay the costs.

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