Il board of appeal dell’EUIPO , decisione del 2 maggio 2023, case R 1967/2022-1, appl: Margiela, conferma la mancanza di distintività di marchio numerico cioè costiotuito dai numeri da 1 a 23 in progresisone e disposti su tre file, per candele, illuminazione ed altri.
Norma di riferimentoi: art. 7.1.b dell’EUTMR
Primo grado amminisrativo: <<In the contested decision, the examiner found that the relevant public would perceive the sign at issue as, for example, a listing of the product/article number, a bar code, or a pre-printed label. By doing so the examiner determined the way in which the sign applied for will, if registered, probably be shown to the public (see, to this extent, 12/09/2019, C-541/18, Sign comprising a hashtag, EU:C:2019:725, § 24, 25). The Board concurs that the sign at issue will likely be perceived by the relevant public as a pre-printed tag/label to be affixed, for example, on the goods in Classes 4, 11 and 21 or on their packaging or, with particular regard to retail services, in Class 35, on an invoice, on a letter head or on a catalogue>>.
L’ufficio in appello:
<<The fact that the sequence does not highlight any specific number does not make it distinctive for the goods and services covered by the application for registration. In particular, the Board notes that a pre-printed tag/label of long sequences of numbers in three lines, could not provide information to consumers capable of designating the commercial origin of the goods or services. For example, the sequence of numbers in three lines, when put on a tag/label for the goods at issue, could indicate the reference number of three variants of an article in stock (e.g. three variants of the same product in three colours) one on top of the other, or as a way which could enable the shop to circle one number in pen for internal accounting purposes (e.g. to indicate the number of items remaining in stock, which may vary and thus can be indicated by hand). When used for the services at issue, the long sequences of numbers in three lines, could be perceived as providing administrative information for the undertaking (e.g. company number/commercial registration number) and/or its services (e.g. publication authorisation number of the retailer’s/wholesaler’s catalogue, etc.) as explained above.
27 As regards both the goods and services applied for, the Board recalls that there must be certain aspects of the signs at issue which may be easily and instantly memorised by the relevant public and which would make it possible for those signs to be perceived immediately as indications of the commercial origin (see, to that effect and by analogy, 29/09/2009, T‑139/08, Device of smile from SMILEY (fig.), EU:T:2009:364, § 31).
28 In the present case, the sequence of numbers from 0 to 23, in three lines when applied to the goods and services for which protection is sought, would not easily and instantly be recalled by the relevant public as a distinctive sign, but will likely be perceived by the relevant public as one (or three) non-distinctive sequence(s) of numbers.
29 The Board observes that the length of the sequence(s) does not allow the individual details of the mark to be committed to memory, or the sign taken as a whole, to be apprehended. The sign for which protection is sought would be perceived by the relevant public as one (or three) long sequence(s) of numbers positioned on three separate lines, but the relevant public is unlikely to remember what numbers are listed in the sign or positioned at the beginning or at the end of each line. Therefore, the sign, taken as a whole, will be perceived as one (or three) unmemorable sequence(s) of numbers, and therefore the relevant public will not tend to perceive it as a particular indication of commercial origin>>.
Caso comunque interessante: non è distintivo perchè non memorizzabile oppure perchè il pubblico, vedendolo, pensa a comunicaizoni ammnistrative interne all’azienda circa il prodotto?
(segnalazione di Nedim Malovic in IPKat)