The UK Intellectual Property Office (“IPO”) has recently rejected an application to trade mark the term ‘WILDFLOWER’ in relation to toiletries and perfume products (under Class 3). The Registrar considered the mark to be descriptive of the characteristics of the goods under s3(1)(c) of the Trade Marks Act 1994 (“the Act”) and therefore also devoid of distinctive character under s3(1)(b) of the Act.
This decision provides a useful recap of the position under English and European law in relation to the grounds for refusal of a trade mark application, and highlighted the correlation between Article 3(1)(c) and 3(1)(b).
In particular, the Registrar noted the following points:
In the application for the ‘WILDFLOWER’ trade mark, the Registrar considered that the consumer’s level of perception may vary according to the goods concerned. The reasonable consumer of perfume would apply ‘at least a moderate level of attention on purchase’, recognising its personal and expensive nature.
Whilst the Registrar accepted ‘WILDFLOWER’ could not be precisely identified by consumers, she concluded that the relevant consumer of the goods would see the sign ‘WILDFLOWER’, on first impression, as a means of describing the characteristic of the goods, taking into account the normal English language definition. The application was refused.
This case serves as a useful reminder of the Court’s approach to grounds for refusal of trade mark registrations and the difficulties faced by applicants if trade marks could be used to describe any aspect of the goods/services’ characteristics. This should clearly be considered carefully by businesses considering registering a trade mark, to avoid facing any objections by competitors. It is also important for businesses to be aware of this to protect their positions if a competitor is seeking to obtain a monopoly over a descriptive/non-distinctive term which could impact on its own trade.