European Union Intellectual Property Office (EUIPO) The Second Appeal Board recently issued its decision, Rejected again "I Love You" Visual emotion symbol (See chart below) Trademark registration. EUIPO The reason for refusing to register the mark is that it does not meet the basic functions of a trademark, That means the company's products and (or) Source of service.

German company Käselow Holding GmbH in 2021 years 12 Application for the logo as an EU trademark (EUTM) Carry out protection, Specify for control 36 Classes financial and real estate services as well as No 37 Classes building and construction-related services.

The symbol is an open hand, The thumb is separated from the other fingers, Keep your index and pinky fingers straight, The middle and ring fingers are folded. In American Sign Language (ASL) In the, This gesture means ILY, Internationally known as "I love you" .

emoji, Whether pictograms such as smiley faces and visual emotion symbols can be registered as trademarks?

in 2022 years 11 month 18 The decision of the day, EUIPO According to the censor "Eu trademark regulation (EUTMR) " The first 7 Article No 1 paragraph b Item rejected the mark for all categories EUTM Apply for. The clause provides, No trademark without distinctive features shall be registered.

As discussed in the judgment, EUTMR The purpose of this article is to ensure that consumers or end users can distinguish products or services bearing the trademark from those offered by other entities, Without confusion.

In the present case, The examiner considered the applied sign to be a gesture, So it's a visual emotion symbol.

Based on established case law, Consumers view pictograms used to express positive emotions, such as emoticons or smiley faces, as purely decorative elements or advertising messages. therefore, They are not suitable to represent the source of a particular company.

In terms of related services, Consumers can only "I Love You" Positive information is inferred from the symbols, The source of the specified service cannot be distinguished. therefore, The mark has not been approved for trademark registration.

EUIPO Review of disputed marks on appeal

On appeal, EUIPO The Second Appeal Board agreed with the Examiner. in 2023 years 6 month 1 The decision issued on Tuesday, The appeal board confirmed the examiner's decision, That is, the registration of the disputed mark on all designated services is rejected on the grounds that it lacks distinctive features, And point out "The symbol in question represents an internationally known gesture" .

In the context of services, The dispute sign will be treated as a simple representation of a positive gesture, Advertising information indicating that the customer is very satisfied with these services.

As a simple positive message, The mark will not be considered as a sign specifying the source of the service, It is a general advertising message or decorative element without any uniqueness.

therefore, In its ruling, the appeals panel noted that pictograms or emoticons that reflect emotions through facial expressions or gestures did not qualify EUTMR The minimum distinctive feature requirements specified for the registration of a trademark. (Be compiled from www. mondaq. com)

TRANSLATORS: Rason group　proofread: Liu Peng



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