In March 2013 the mark was granted registration under EUTM No 010914836 in Classes 9, 20 and 35. The protected goods included “Smart phones, Mobile computing devices, tablets” and “Furniture”, while the services included the retailing, wholesaling and mail order of these and other goods. On 29 February 2016, Samsung Electronics GmbH (“Samsung”) applied for a declaration that the registration was invalid on the basis that the mark was non-distinctive and descriptive in relation to all of the protected goods and services. However, the Cancellation Division rejected Samsung’s application and the registration was maintained. The Cancellation Division found that the term “SMART THINGS” was descriptive, and noted that the figurative element “:)” (“the emoticon”) is ubiquitously used as a smiley in society at large, including in business, and has positive connotations. However, the Cancellation Division held that the emoticon endowed the mark with at least a minimum of distinctive character and meant that the mark as a whole was not purely descriptive.
The owner of an earlier mark which had been recognised as famous in China was unsuccessful in an opposition to an EUTM application based on prior registrations of variants on that mark. However, they subsequently succeeded in a cancellation action, in which they alleged that the Registrant (originally from China) must have been aware of their mark and had acted in bad faith in registering it.