A sign composed exclusively of numerals can be registered as a EU trade mark, even though it doesn’t have a graphic representation, since there isn’t, in principle, any absolute ground for refusal to the registration of such trademark.
However, the registration is refused if there is a sufficiently direct and specific link between that sign and the goods or service in respect of which registration is sought, to enable the relevant public to perceive immediately, without further thought, a description of one of the essential characteristics of the goods or services in question, such as their quantity or value.
This was stated by the General Court of the European Union in a recent judgement of July 14, 2017 (case T-214/16), which confirmed the decision of the EUIPO refusing the application for registration of the sign 4600 as a EU trade mark in respect of “compressed air guns for painting”.
In support of its decision, EUIPO had considered that since the sign 4600 was composed of a series of numerals which can be used to indicate a value of pressure expressed in pound per square inch (the unit of measure for pressure widely used in the Anglo-Saxon countries), it could be immediately perceived by the relevant public as descriptive of a characteristic of the goods in question and not of their provenance from a specific undertaking.
EUIPO considered, then, that the sign in question, if examined in the light of the absolute grounds for refusal referred to in Article 7 (1)(b) and (c) of the Regulation (EC) No. 207/2009 on the Community trademark, was descriptive and devoid of any distinctive character.
In fact, Article 7 (1) of the Regulation on EU trademark provides that:
“The following shall not be registered:
- b) trademarks which are devoid of any distinctive character;
- c) trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service”
By its judgement, the General Court upheld the decision of EUIPO and confirmed the stance that had been taken by the Court of Justice in its judgement of March 10, 2011 (case C-51/10 P) about the possibility of registering numeral trademarks.
The European court reaffirmed that since those signs are often used in trade to designate a quantity or a value, it should be assessed case by case if for the relevant public the quantity or value that they indicate could characterize the goods or services in respect of which an application for registration has been filed.
If that is the case, as in the present case, the sign in question shall be considered as merely descriptive and, as such, devoid of any distinctive character, therefore the registration shall be denied.