EU court throws out dentistry TM application

The EU General Court has dismissed an appeal from German company Nemius Group against a decision to refuse registration for its ‘Dentaldisk’ mark.

In its  ruling, issued today, January 13, the court affirmed the findings of the European Union Intellectual Property Office (EUIPO) that the mark lacked distinctiveness and was descriptive of the goods and services in question.

Nemius applied for the ‘Dentaldisk’ mark in 2016, covering a variety of medical devices and wholesale services in classes 10 and 35. The application was partially rejected the following year, after which Nemius appealed.

The EUIPO’s fifth board of appeal found in January 2018 that ‘Dentaldisk’ was descriptive of the goods and services provided for under the trademark application, bearing in mind the relevant English-speaking public.

The board noted that although the spelling of ‘Disk’ was slightly different to the common usage of the word ‘disc’ in English, the relevant public would “immediately” recognise the phrase ‘dental disc’ as describing the goods and services being offered owing to the phonetic similarity between the terms.

Nemius’ appeal to the General Court was lodged in May of that year. In today’s ruling, the court found that the appeals board was correct in ruling that the relevant public, made up of English speaking medical practitioners, would associate the mark with the provision of dental discs.

The Germany company also objected to an internet search of terms relating to ‘dental disc’ carried out by the appeals board in November 2017. Nemius argued that the search, carried out subsequent to its trademark application, could not be considered when assessing the mark’s descriptive character.

The court rejected the argument, noting that documents found in the search which were dated before the trademark application were admissible.

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