27 November 2018Trademarks

EU court pulls plug on ‘H20+’ trademark

The EU General Court today rejected a cosmetics company’s trademark appeal centring on the term H20, after finding that the disputed mark lacks distinctive character.

In 2016, San Francisco-based H20 Plus sought protection for international trademark registration 1,313,244 in the EU. The figurative mark, which shows ‘H20+’ in block lettering, covers cosmetics, lotions, and medicated sunscreens in classes 3 and 5.

An examiner at the European Union Intellectual Property Office (EUIPO) refused the registration in 2017, and the First Board of Appeal upheld the decision during the same year.

The board held that, for the goods concerned, the mark lacks distinctive character.

Consumers would “effortlessly” understand the mark as referring to the chemical formula for water next to a mathematical sign which, as a ‘plus’ figure, would be perceived as referring to the particularly high quality of the goods, the board said.

H20 appealed against the decision, and argued that the board erred in deciding that the mark was devoid of distinctive character.

The cosmetics company said that the mark would not be considered as a usual combination of symbols, but rather as “a creative combination of characters, numbers, and a mathematical symbol” which is capable of distinctive character.

H20 also claimed that the end part of the mark, consisting of an ‘o’ and a ‘+’, could be perceived as a Venus symbol, which consists of a circle above a small cross (♀).

Today, the EU General Court noted that the average consumer perceives a trademark as a whole, so the board was correct to find that ‘H20+’ consists of “easily identifiable” symbols which lack distinctive character.

Additionally, the court noted that hydration is related to the goods covered by the mark, as the creams are intended to protect the skin and have a moisturising effect.

The court said: “The fact that some of the goods in question do not consist primarily of water cannot suffice to conclude that the relevant public will not perceive the sign at issue as an indication of such a characteristic.”

As a result, the court affirmed the board’s finding that the mark would be understood as referring to a certain quality or characteristic of the goods, in that they provide better or extra hydration.

The court added that it would take “a special imaginative effort” to perceive the ending of the mark as the Venus sign, which is not read horizontally as the mark would be, so the combination of the ‘o’ and ‘+’ cannot confer any distinctive character on the mark.

After dismissing the appeal, the court ordered H20 to pay the costs.

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