By an international registration, filed at the US Patent and Trademark Office as the Office of Origin, designating the European Union on 31 October 2013 and received by OHIM (‘the Office’) on 5 December 2013, Apple Inc. sought to register the below figurative mark in classes 9 and 38.
On 3 January 2014, the examiner informed the IR holder that the mark applied for was not eligible for registration for all claimed goods and services pursuant to Article 7(1)(b) CTMR, because it is devoid of any distinctive character and is incapable of distinguishing the goods and services for which registration is sought.
Apple filed observations on the provisional grounds of refusal. The examiner, by decision of 24 September 2014 (‘the contested decision’), maintained his objection for all the goods and services. The relevant appeal was remitted to the Board on 5 March 2015.
According to the Board of Appeal, all investments for media coverage, awards and TV commercials, the Internet appearance and IR holder’s shops, relate to other trade marks held by the IR holder. Furthermore, the evidence submitted by the IR holder shows that the ‘video camera’ device is depicted together with the word ‘FaceTime’ underneath or beside the device. Use of the sign at issue in combination with the word ‘FaceTime’ is not proof of acquired distinctiveness. Moreover, as the examiner correctly pointed out in the contested decision, the launch of the ‘video camera’ device only a few months before the mark’s filing date militates against a finding of acquired distinctiveness.
The Board dismissed the appeal.
