EU General Court rejects TM appeal by German chip-tuning company
An EU court has rejected an appeal by the owner of a German company which enhances the performance of automobile engines, after his trademark application was denied for being too descriptive.
In a decision today, July 11, the EU General Court upheld a decision by the European Union Intellectual Property Office (EUIPO) that TurboPerformance cannot register a trademark for its name and logo because it lacks distinctive character.
TurboPerformance’s owner, Andreas Hauzenberger, had sought to register a mark for the name of the company, written under the arch of an engine power tachometer, for goods and services including chips for engine control of vehicles, repair and maintenance of vehicles and technological services.
But, in August 2017, the EUIPO refused the registration.
In its decision, the General Court upheld the EUIPO’s finding that the word “turbo” is the short-form of the term “turbo engine”. It said the combination of “turbo” with the word “performance”would be interpreted as referring to the “high performance of an engine”, which “can be achieved with the help of a turbo”.
Hauzenberger’s lawyer had argued that the phrase ‘TurboPerformance’ is a distinctive term because it is an “unusual composition which does not appear in dictionaries”.
But the General Court said the combination of the two words does not give the impression of a single, distinctive word since the letter ‘P’ is written in capital letters.
The court said the relevant public will break ‘TurboPerformance’ down into its verbal elements, namely turbo and performance.
“Thus, this word is by no means unusual,” the court said, adding that the word element of the mark is descriptive of the goods and services in the application.
It also found that the figurative element of the mark, the tachometer with a needle pointing to the darker area as to indicate high power, would be associated with high engine power, relaying the same impression given by the mark’s word element.
“Your consumer will immediately recognise that the goods and services designated by the mark either improve or optimise the performance provided by a turbocharged engine or contribute to turbo performance of an engine,” the court said.
Hauzenberger had attempted to submit new evidence before the General Court, but the court said it could only assess the legality of an EUIPO decision on the basis of the information available to the EUIPO at the time of its decision.
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