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Unhappy Valentine for Bayer


The EU General Court refused Bayer’s heart – and, with cruel irony, did so on Valentine’s day.

Bayer Intellectual Property GmbH had applied for the Logo shown below as an EUTM, in respect of services in Classes 42 and 44 relating to “the field of cardiovascular diseases”.

Bayer had already registered the same Logo for pharmaceutical preparations in Class 5. However, the application in respect of the services was refused on the basis that the Logo was “devoid of any distinctive character” (refusal under Article 7 (1) (b) of Regulation (EU) 2017/1001).

Bayer appealed unsuccessfully against this refusal. In its decision, the Board of Appeal maintained that the Logo would be perceived by the relevant public as a representation of a heart and, therefore, as a reference to the fact that the services in question concern the field of cardiology.

Bayer next applied to the General Court to overturn the decision of the Board of Appeal. In a judgment which was handed down on 14 February 2019, the General Court maintained the refusal of Bayer’s application and ordered Bayer to pay costs.

Bayer had alleged that the Board of Appeal had failed to take account of the high level of attention that would be paid by the relevant public for the services in question. The Board had found, and Bayer did not dispute, that here the relevant public includes specialists in cardiovascular diseases within the EU. Although the Board had acknowledged in its decision that the level of attention of the relevant public was high, Bayer argued that the Board had not taken that high level into account in assessing the distinctiveness of the Logo.

The General Court rejected this argument, citing case law to show that a trade mark must allow the relevant public to distinguish the goods/services supplied under a mark from those of other undertakings “without paying particular attention”. Accordingly, the General Court held that the threshold required for a mark to be distinctive cannot depend on the level of attention of the relevant public. The General Court referred to a prior judgement of the Fifth Chamber of the EU Court of Justice, which explicitly stated:

“…. it must be held that the fact that the relevant public is a specialist one cannot have a decisive influence on the legal criteria used to assess the distinctive character of a sign. Although it is true that the degree of attention of the relevant specialist public is, by definition, higher than that of the average consumer, it does not necessarily follow that a weaker distinctive character of a sign is sufficient where the relevant public is specialist.”

* Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 48

Bayer had also alleged that the Board of Appeal was wrong to hold that the Logo was devoid of any distinctive character. Bayer alleged that the mark would not be perceived by the relevant public as a heart, but rather as a stylised letter “V”, standing for “Vericiguat”. (“Vericiguat” is one of Bayer’s own drugs for the treatment of heart failure.)

Sadly for Bayer, the General Court found that the curved shape towards the inside of the Logo differs from the ordinary representation of the letter “V” and renders it closer to a stylised heart. In relation to services concerning the heart, the General Court held that the Logo will be perceived by the relevant public as a representation of a heart, even if it were to be established that the relevant public is aware of the active ingredient “Vericiguat”.

Bayer had argued that even if the Logo were to be perceived as representation of a heart, it would still be an unusual and distinctive representation. Bayer claimed that the stylised characteristics of the Logo included the increased thickness of the bottom-left outline, the fact that the top-left is not downward facing and the lack of overall symmetry.

This argument was also dismissed by the General Court, who held that these features would not be likely to transmit any message which the relevant public could remember. The General Court held that the mark would still only indicate that the services in question relate to the heart, without indicating the commercial origin of the services.

In a further line of argument, Bayer had alleged that the EUIPO had infringed the principles of equal treatment and of sound administration by refusing to register a mark which had previously been accepted for registration (for Class 5 pharmaceuticals).

Once again, the General Court held that this line of argument was unfounded. While the EUIPO must take account of decisions previously taken in respect of similar applications and should consider with special care whether or not to reach the same decision, the Boards of Appeal cannot be bound by previous decisions of the EUIPO and each case must be carefully considered on its own merits. The Class 5 goods for which the same mark had previously been granted registration were not specifically related to cardiology so, unlike the services in question, they did not have a “directly and immediately recognisable relationship with a human heart.”

The General Court therefore held that the Board of Appeal was correct to find that the mark lacked all distinctive character for the services.

Points to take away:

  • A stylised mark may still be held to lack any distinctiveness, unless the stylisation adds memorable features which would enable the relevant public to identify the commercial origin of the goods/services.
  • Even if a mark is for use on goods which will have customers who are specialists, the mark itself must allow the relevant public to identify the commercial origin of products without paying particular attention.
  • The same mark may be distinctive for some goods or services but lack any distinctiveness for others.
  • When drafting specifications in this field, is it necessary to specify the intended treatment?  Would there have been a different result if the services listed in the application were not restricted?

(Case T-123/18, Judgment of the General Court (Ninth Chamber), delivered in open court in Luxembourg on 14 February 2019)

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

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