Case T-85/08

Exalation Ltd

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Application for Community word mark Vektor-Lycopin – Absolute grounds for refusal – Lack of distinctive character – Descriptive character – Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))

Summary of the Judgment

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods

(Council Regulation No 40/94, Art. 7(1)(c))

The word sign Vektor-Lycopin, for which registration is sought in respect of ‘Pharmaceutical and veterinary preparations for medical purposes; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies’, ‘Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats’ and ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); ice’ falling within Classes 5, 29 and 30 of the Nice Agreement, is descriptive of the goods covered by the Community trade mark application, for the purposes of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark, from the point of view of the relevant public including all producers and consumers of those goods, that is to say certain professionals as well as the general public.

The relevant public must be regarded as being aware of the meaning of the term ‘lycopin’, or at least it is reasonable to envisage that the relevant public will become aware of it in the future. First, that technical term designates a food supplement necessarily known by some of the relevant public, in particular professionals dealing with dietetic, pharmaceutical and veterinary preparations. Secondly, the meaning of the term ‘lycopin’ is easily accessible to consumers of all the goods covered by the application for registration. The meaning of the term ‘lycopin’ does in fact appear in dictionaries and on web sites. It is probable therefore that the substance designated by that term is also known by some of the consumers of all the goods concerned. Thirdly, consumers of pharmaceutical, veterinary, dietetic and sanitary preparations for medical use who are not aware of the meaning of the term ‘lycopin’ will often tend to seek advice from the informed section of the relevant public, namely doctors, pharmacists, dieticians and other traders in the goods concerned. Thus, by means of the advice received from those who prescribe it or through information from various media, the less well informed section of the relevant public is likely to become aware of the meaning of the term ‘lycopin’.

In the mind of the relevant public, the combination Vektor-Lycopin, associated with the food, dietetic, sanitary, veterinary and pharmaceutical preparations covered by the application for registration, will evoke the property of those goods as transmitters of lycopene. The relevant public, faced with the sign for which registration is sought associated with the goods covered by the application for registration, would consider that the goods at issue contain lycopene and allow consumers of them to assimilate that substance.

Thus, the combination of the terms ‘vektor’ and ‘lycopin’, as in the sign Vektor-Lycopin, will constitute in the mind of the relevant public an indication of the properties of the goods concerned.

(see paras 36, 40-43, 56-58)