In the resolution dated September 13, 2024, the EUIPO rejected the European Union Trademark No. 18 969 849, based on Article 7(1)(b) EUTMR, on the grounds that it lacked distinctiveness.

The applicant argued that the trademark had strong distinctive character, supported by technical and psychological studies presented that highlighted the distinctiveness of the mark. Among others, the following analyses were submitted:

  • “Graphical Analysis of the Hestern Pattern”
  • “Psychological Analysis of Patterns”

The requested trademark consisted of lines and geometric elements in the colors blue, black, and white, repeating the letter “H” and generating a sensation of steps, which, according to the applicant, made the pattern unmistakable due to its complexity.

In this regard, it is important to note that Article 3 EUTMR defines pattern marks as those consisting of elements that are regularly repeated. In this case, the applicant claims that the pattern is imaginative and unusual, capable of being memorized by consumers and generating a sufficiently distinctive impression for registration.

The applicant also highlighted that there is a trend in the fashion sector to use verbal elements as identifying patterns, as evidenced by brands such as Burberry, Louis Vuitton, Gucci, Fendi, and Céline. This implies that the public is accustomed to identifying a fashion brand by its patterns as a means of recognizing its commercial origin.

These arguments did not convince the Office, which upheld the denial based on several reasons related to marks devoid of distinctive character under Article 7(1)(b) EUTMR:

  1. Although the criteria for evaluating distinctiveness are the same across all categories of trademarks, it may be more challenging to establish it in certain categories.
  2. The average consumer does not conduct an analytical examination of trademarks. A mark must be capable of distinguishing products without the need for a detailed analysis. This is because consumers will not break down the pattern.
  3. The mark will be perceived as merely decorative and not as an indicator of origin.
  4. With respect to products in Classes 3, 9, 14, 18, and 25, consumers are confronted with a set of basic geometric patterns, which means they do not indicate their commercial origin.
  5. Pattern marks are commonly used in fabrics, clothing, and other products that feature designs, implying that the pattern is part of the product’s external appearance.

Therefore, the requested mark, which consists solely of a fabric pattern (3D combination of geometric shapes), will be perceived as decorative and not as an indicator of origin, which is why registration is denied.

Resolution dated 09/13/2024 European Union Trademark No. 18 969 849