Appeal decision report (eK) | ONDA TECHNO Intl. Patent Attys.[Japan Patent Firm] | Gifu City

Appeal decision report (eK) | ONDA TECHNO Intl. Patent Attys.[Japan Patent Firm] | Gifu City

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Appeal decision report (eK)

May 12, 2020
Noriko Yashiro

 

Appeal number Rejection 2019-8850(JP Appl. No. 2016-138753)
Case summary Trademark consisting of two alphabetical characters (standard characters) is allowed to be registered because it is impossible to determine, based on the provided evidence, that the applied-for trademark consists solely of a very simple and common mark.
Date of decision March 16, 2020
Demandant (Applicant) MITSUBISHI MOTORS CORPORATION
Trademark(s) eK (Standard characters)
Designated Goods and Class(es) Automobiles and their parts and fittings in class 12
Judgement Upon appeal, three examiners concluded that it is impossible to determine that the applied-for trademark consists solely of a very simple and common mark and, as such, the trademark “ek” should be registered. The examiners did not find evidence in the record that “ek”, specifically, had been commonly used as a code or descriptor in the field of art, for example, to identify models or create product numbers. Additionally, in allowing the registration, the examiners cited evidence that although two alphabetical characters had been used as a trade name in the field of the designated goods, they did not find that the specific mark “ek” had been used by anyone other than the applicant.
Comments Japanese trademark law provides that a trademark consisting solely of a very simple and common mark cannot be registered. The applied-for trademark “ek” was rejected in the examination stage. The examiner asserted that the trademark could not be registered because it consists of two alphabetical characters using standard characters and because one or two alphabetical characters are commonly used as codes or descriptors in the field of art, for example, to identify models or create product numbers. That is, the trademark “ek” consists solely of a very simple and common mark. In addition, the examiner asserted that this trademark had not acquired distinctiveness by being used. In appeal stage, the applicant countered that the applied-for trademark “ek” does not consist solely of a very simple and common mark and that this trademark had acquired distinctiveness by being used even if the applied-for trademark “ek” consists solely of a very simple and common mark.  However, the three examiners did not refer to the acquired distinctiveness because they concluded that it is impossible to determine, based on the provided evidence, that the applied-for trademark consists solely of a very simple and common mark.