The trademark “POWERUP” (in class 21) has been registered in Japan.
Japanese trademark law provides that a trademark that consists solely of a mark indicating, in a common manner, in the case of goods, the place of origin, place of sale, quality, raw materials, efficacy, intended purpose, quantity, shape (including shape of packages), price, method or time of production or use, or, in the case of services, location of provision, quality, articles to be used in such provision, efficacy, intended purpose, quantity, modes, price or method or time of provision is unregistrable.
The above-captioned trademark “POWERUP” was rejected in the examination stage. The examiner asserted that this trademark consists of the word “POWERUP” in standard characters and that the spelling is identical to “POWER UP”, which means “increase in power; get power”. The phonetic translation (in Japanese Katakana) of “POWERUP” has been used in advertisements of electric tooth brushes in a normal way and has been generally familiar. Thus, the examiner concluded that consumers and traders recognize only that the trademark “POWERUP” indicates “increase in power of efficacy and the like” of goods and rejected the application.
The applicant filed an appeal of the rejection. The three appeal examiners judged that it is difficult to say that consumers and traders recognize that the above-captioned trademark “POWERUP” indicates the quality (contents and efficacy) of the designated goods directly and particularly, even if the trademark “POWERUP” might be associated with “Power up” meaning “increase in power; get power” and suggest such meaning, because the trademark consists of the same font, size and space and because the trademark is considered to be an inseparable coined mark.
In addition, the appeal examiners did not find that the trademark “POWERUP” has been used generally to indicate quality (contents and efficacy) and that there are no circumstances under which consumers and traders recognize that the trademark indicates the quality and the like of the designated goods directly and particularly in the field of its designated goods in common, according to ex officio searches.
Thus, the trademark “POWERUP” can fulfill the requirement of distinctive character in connection with the designated goods.