EU court rejects Bayer’s heart-related TM
Bayer suffered defeat at the hands of the EU General Court today, with the rejection of its attempt to register what the court deemed to be heart-related trademark.
In a decision handed down earlier today, February 14, the General Court affirmed the European Union Intellectual Property Office’s (EUIPO) refusal to register a figurative sign of what appears to be a stylised heart.
Bayer applied to register the mark in July 2016, for classes 42 (conducting scientific studies in the field of cardiovascular diseases) and 44 (medical services in the field of cardiovascular diseases).
In November 2016, the examiner refused registration.
Bayer appealed against the decision but, the following year, the EUIPO’s First Board of Appeal rejected the appeal, finding that the mark was devoid of distinctive character.
According to the appeal board, the mark would be perceived by the relevant public as the representation of a heart and as a reference to the fact that the services covered concern the field of cardiology.
Again, Bayer appealed against the decision, arguing that the appeal board erred in failing to take account of the relevant public’s high level of attention and for finding that the mark is devoid of any distinctive character.
Bayer claimed that although the appeal board had correctly found that the public had a high level of attention, it didn't take this into account when assessing the distinctiveness of the mark.
This argument was dismissed by the General Court, which stated that the relevant public should be able to distinguish the products covered by the mark from those of another undertaking without paying particular attention, so the distinctiveness threshold can’t depend on the public’s level of attention.
Second, the General Court concluded that the mark was devoid of any distinctive character.
Bayer had argued that the public would perceive the mark as the ‘v’ of the word ‘vericiguat’ (Bayer’s drug for the treatment of chronic heart failure and coronary artery disease) and not as the representation of a heart.
“Contrary to what the applicant submits, the mark applied for is not likely to be perceived as representing the letter ‘v’ of the word ‘vericiguat’. The curved shape towards the inside of the sign from both ends of the black element of the mark applied for differs from the ordinary representation of the letter ‘v’ and renders it closer to that of a heart,” said the court.
Finally, Bayer argued that that EUIPO had infringed the principles of equal treatment and of sound administration by refusing to register the trademark, despite already accepting the registration of an identical trademark covering pharmaceutical preparations in class 5.
The court dismissed the argument as unfounded, noting that an examination of the distinctiveness of a mark applied for depends strictly on that mark, and not on findings of fact relied on by the applicant.
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