Questo il marchio in esame per prodotti alimentari, respinto dall’ufficio perchè privo di distintiva (art. 7.1.b-c reg. UE 2017/1001).
<< 34 in the light of the foregoing, the Court finds that the word element ‘fresh’ of the mark applied for will naturally be perceived by the English-speaking public of the European Union, immediately and without further thought, as a descriptive indication of a characteristic or the intended purpose of all the goods and services covered by the application for registration, and not as an indication of their commercial origin. In order for the registration of a mark to be refused, it is sufficient that there are grounds for refusal in part of the European Union (see, to that effect, judgments of 8 July 2004, MLP Finanzdienstleistungen v OHIM (bestpartner), T‑270/02, EU:T:2004:226, paragraph 21, and of 27 September 2005, Cargo Partner v OHIM (CARGO PARTNER), T‑123/04, EU:T:2005:340, paragraph 57).
35 Thus, the Court considers that there is a sufficiently direct and specific relationship between the word element ‘fresh’ of the mark applied for and all the services at issue, with the result that the relevant English-speaking public will immediately perceive, without further thought, a description of those services or of one of their characteristics.
36 As regards the figurative elements of the mark applied for, the Court finds that they have, as such, no element that is visually eye-catching or likely to be remembered by the relevant public. As is rightly noted by the Board of Appeal, those figurative elements do not divert the attention of that public away from the descriptive word element of that mark, but, on the contrary, reinforce that descriptive character by the representation of two green leaves, which recall the concept of fresh and natural.
38 Accordingly, the figurative elements of the mark applied for are not, because of the representation of two stylised green leaves, or the stylisation or the colour of the letters, particularly complex; nor are they capable of offsetting or altering the descriptive character of the word element of that mark in relation to the goods and services at issue.>>
Decisione non difficile: l’assenza di distintività è palese.
Il Trib. conferma anche per servizi (classe 39), in quanto correlati ai prodotti alimentari . E’ il punto meno scontato della decisione :
<<30 As regards the services in Classes 35 and 39 covered by the mark applied for, it should be noted that the relevant English-speaking public will directly perceive the word element ‘fresh’ as providing information concerning the kind, quality and intended purpose of those services, since that element may be associated with the object, aim or field of specialisation of the services in respect of which registration of the mark is sought.
31 In particular, a direct descriptive link will always be established in the mind of the relevant public between the word element of the mark applied for and the services at issue, which consist of: (i) the retail sale of foodstuffs and beverages, which the relevant public will identify as fresh goods which are not cooked, have been recently obtained, or have been prepared with fresh goods that have been recently cooked, frozen, canned or preserved by other methods; (ii) the retail sale of toiletries, cleaning preparations and beauty and hygiene products which provide a degree of freshness or contain ingredients that the relevant public will identify as being fresh or as conveying a feeling of freshness and cleanliness; (iii) the retail sale of freezing equipment, the ultimate aim of which is preserving the freshness of retailed products; (iv) the retail sale of tobacco, a product which the relevant public will perceive as being fresh (for example, fresh tobacco leaves), or associated with air fresheners used to counteract the smell of tobacco; and (v) business, administrative, advertising and marketing services which could be specifically aimed at undertakings operating on the market of fresh goods and at companies marketing fresh foodstuffs and beverages.
32 Although the last set of services covered by the mark applied for – business, administrative, advertising and marketing services – are not expressly aimed at undertakings which operate on the market of fresh goods and at companies which market fresh foodstuffs and beverages, they also include specific services which could be used by such undertakings and companies. Therefore, as regards those generic services, the relevant public will naturally associate the word element ‘fresh’ with a characteristic of those services and will easily assume that the services in Class 35, which are normally for the purpose of running a business and facilitating the sale of goods or services, are specialised in the field of fresh goods.
33 As regards the services relating to the packaging and storage of goods in Class 39, it is sufficient to note that the main aim of those services is to keep goods fresh and to avoid any deterioration. Consequently, the word ‘fresh’ may be perceived by the relevant public as a direct indication that the goods which are packaged and stored by using the applicant’s services will be kept fresh in the sense that they will maintain their characteristics and properties.>>