The European Court ruled in Case T-318/15 – Zitro IP Sàrl v. OHIM. It concerns an attempt for registration of the following European trademark:
Class 9: ‘equipment for information processing and computers; computer programs; computer hardware and software, in particular for bingo parlors, casinos; games software; interactive game programs “;
Class 28: “Games and toys; automatic games in pre-payments; automatic games other than those adapted for use with television receivers; prepayment devices (games); machinery recreational rooms games, including gambling halls and paris; Etc”
Class 41: ‘Entertainment services; online game services; organization of competitions; organization of lotteries; providing amusement facilities; gaming services; information services for entertainment and recreation, including electronic tables providing information, news, tips and strategies for computer games, computer and video; casino services; provision of entertainment facilities; rental of recreational machines and paris; Amusement park services. “
OHIM refused to register this mark based on Article 7 (1) b) and c) CTMR. The sign is descriptive and non-distinctive for the specified goods and services because indicates that consumers have an opportunity to obtain a triple bonus.
The graphic representation of the mark is not enough to create the necessary level of distinctiveness.
This decision is very important in the case of filing a trademark application. Generally speaking it is possible non-distinctive signs to be registered as a figurative marks but only in case that this marks have elements that create the necessary distinctiveness.