With a recent decision the EU General Court rejected the appeal filed by the world famous sport article producer against the EUIPO rejection of the trademark application FOREVER FASTER for goods in classes 25 and 28. (Case T-104/16)
The Board of Appeal of the EUIPO decided that the expression “forever faster” will be understood by the English-speaking public immediately and without any analytical effort as referring to “speed with a long duration”. Moreover the Board stated the message would be perceived as a simple laudatory formula or information on the desired qualities and purpose of the goods in question, namely to help their users become “constantly faster”. The Board of Appeal concluded that the mark applied for was devoid of any distinctive character as regards the goods in question and that the message conveyed by that mark, beyond its promotional meaning, contained no element enabling the relevant public to perceive it as an indication of the commercial origin of the goods in question and was not unusual in the sporting sector.
The General Court sustained the arguments put forward by the applicant do not undermine the Board of Appeal’s findings that the mark applied for, taken as a whole, sends out a clear message which is not unusual in the sporting sector, on the desired characteristics of the goods in question, namely that those goods allow their user to be ‘ever faster’ or ‘to go faster for longer’. The mark applied for, taken as a whole, describes the desired quality or characteristics of the goods in question. The goods may be designed, in particular, to allow their users to move quickly or to win a game or competition. Footwear, in Class 25, is used in numerous sports in which speed is essential. In addition, better results in terms of speed may be achieved thanks to the specific characteristics of a pair of shoes, such as the use of lightweight materials, a flexible structure, or the fact that they are comfortable to wear. Similarly, the goods in Class 28 are normally designed so as to meet the performance needs of the user, namely the need to be faster than others, faster than before, or to achieve a higher level of performance. Athletes and amateur sportsmen, who form part of the relevant public, are aware of those characteristics of the goods in question and purchase those products, in particular, because of those characteristics.
According to settled case-law the laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark can be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of the goods or services. It follows that, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood, perhaps even primarily understood, as a promotional formula has no bearing on its distinctive character (case T-203/14 Splendid).
However the General Court decided that in this matter the arguments put forward by the applicant do not undermine the Board of Appeal’s findings that the mark applied for, taken as a whole, sends out a clear message which is not unusual in the sporting sector, corresponding, in essence, to a simple laudatory declaration or information on the desired characteristics of the goods in question, namely that those goods allow their user to be ‘ever faster’ or ‘to go faster for longer’. As it is perceived in that way by the relevant public, the mark applied for cannot fulfil the function of identifying the commercial origin of the goods in question and therefore does not comply with the provisions Article 7(1)(b) of EU Regulation No 207/2009.
