The decision issued by the Fourth Board of Appeal on August 30, 2024, in case R 790/2024-4, addresses the application for the registration of European Union trademark No. 18 876 003, relating to the sports drink trademark “PRIME”. This application was initially denied by the examiner on July 4, 2023, pursuant to Article 7(1)(b) of the EUTMR, concluding that the term “PRIME,” for English-speaking consumers, does not fulfill the distinctive function required of a trademark and is therefore incapable of indicating the commercial origin of the product. Instead, it merely conveys information about the quality or value of the product. Consequently, the contested sign was deemed neither original nor distinctive, but rather simple and laudatory.

In response to this decision, the applicant for the “PRIME” trademark filed an appeal, arguing that the term in question did possess distinctive character and that its meaning should not be assessed solely based on dictionary definitions. Rather, the specific context of its use within the relevant product class should be considered, which would lead to the conclusion that the mark is not merely descriptive of the product’s quality.

The Board of Appeal reviewed the case and concluded that the term “PRIME” is widely used in advertising to describe products of high quality, which renders it devoid of distinctive character. This promotional use causes consumers not to perceive the commercial origin of the product. Consequently, it was determined that the term “PRIME” lacks originality and is merely descriptive of the product’s quality and excellence, which precludes its registration as a distinctive trademark.

Therefore, being perceived as promotional information and falling within the scope of Article 7(1)(b) of the EUTMR, the Board dismissed the appeal, affirming the earlier decision and confirming that the term “PRIME” does not possess distinctive character, thereby upholding the refusal of the trademark application.

 

DECISION of the Fourth Board of Appeal, August 30, 2024 – case R 790/2024-4