EU General Court throws out Canadian company’s TM appeal
The EU General Court has dismissed a trademark appeal from Canada-based Equity Cheque Capital Corporation on the ground that its applied-for mark is devoid of any distinctive character.
In a judgment today, January 17, the court upheld a prior decision by the European Union Intellectual Property Office (EUIPO) to reject Equity Cheque Capital’s proposed mark, ‘Diamond Card’.
In August 2016, Equity Cheque Capital filed an application with the EUIPO to register the trademark for a variety of insurance services.
The proposed mark bore the words ‘Diamond Card’ in an italicised, bold, black font, with an illustration of a black diamond to the left of the words.
In May 2017, the EUIPO refused the application on the ground that the mark was devoid of any distinctive character.
Equity Cheque Capital appealed against the decision in July that year. In December 2017, the Fourth Board of Appeal of the EUIPO dismissed the appeal.
The Fourth Board of Appeal found that the mark was devoid of any distinctive character for several reasons. In its rejection, it said that “since the mark applied for consists of an expression in the English language, the relevant public for the assessment of the distinctiveness of that mark was the English-speaking public”.
But, since the words comprising the mark were part of basic English vocabulary and the same as, or similar to, their translations in other EU languages, they would be understood by all of the EU public.
The appeal board also said that the expression ‘Diamond Card’ did not indicate the services covered by the mark, but rather a statement of value and served “as a mere promotional message in relation to those services”.
In its ruling today, the General Court upheld this view. It said that the public will understand the expression ‘Diamond Card’ as a reference to luxury, wealth and value.
It concluded that ‘Diamond Card’ is similar to existing expressions such as ‘gold card’ and is therefore not original.
Additionally, it said the applied-for mark had no unusual element which could make it distinctive, and agreed with the appeal board that the public will perceive the mark as a promotional message.
The court concluded that Equity Cheque Capital’s appeal must be rejected as inadmissible and ordered the company to pay the costs.
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