Can H2O+ be a trademark in The EU?

drop-of-water-545377_960_720The General Court of the European Union has issued a decision on case T‑824/17 H2O Plus LLC v EUIPO, which concerns an EU application filed by the US company H2O Plus for the following trademark:

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for the following goods:

Class 3: ‘Non-medicated skin care preparations; cosmetic preparations for skin care; cosmetic preparations for body care; skin care products, namely non-medicated skin serum, beauty serums, non-medicated anti-aging serum, cosmetic creams, face and body creams, eye creams, anti-wrinkle creams, anti-aging creams, night creams, age spot reducing creams; sunscreen creams, nail cream, face and body lotions, skin lotions, body lotions with SPF, gels for cosmetic purposes, beauty gels and shower and bath gel; eye lotions; eye gels; facial masks; facial washes; facial creams; facial cleansers; facial moisturisers; skin moisturisers; skin masks; cosmetic masks; beauty masks; gel eye masks; toning lotion for the face, body and hands; anti-aging toner; skin toners; soap; anti-aging cleanser; skin cleansers, wipes impregnated with a skin cleanser; skin cleansing gels; skin care preparations, namely skin peels; cosmetic preparations, namely, firming creams, firming lotions, facial moisturiser with SPF, face powder, non-medicated exfoliating preparations for use on the face, skin, body, hands and feet; lip cream; lip balm; non-medicated lip care preparations; lip balm with SPF; make-up remover; cloths or tissues impregnated with a skin cleanser; cosmetic body scrubs for the face, skin, body, hands and feet; beauty creams for body care; body and beauty care cosmetics; body wash; skin care preparations, namely, body balm, skin and body topical lotions, creams and oils for cosmetic use; body butter, body oil, hair care preparations, hair shampoos and conditioners; hand cream; non-medicated foot cream and foot scrubs; lipstick; after-shave balms; shaving soaps; shaving preparations, pre-shave creams, pre-shave oils; non-medicated bath salts, non-medicated bath preparations; skin refreshers; antiperspirants; personal deodorants; deodorants for body care; cosmetic pads; pre-moistened cosmetic towelettes; body masks; body washes; cosmetic preparations for eye care; lip glosses; nail care preparations; non-medicated acne treatment lotions; non-medicated acne treatment preparations;’

Class 5: ‘Medicated sunscreen, namely, lotions containing sunscreen; acne treatment preparations, namely, cleansing pads, lotions, creams, and cleansers’.

The EUIPO refused to register this mark based on the absolute grounds – descriptiveness and lack of distinctiveness with regard to above-mentioned goods. Consumers will perceive the sign as an indication of the ingredients and chemical formula of the products and not as a source of origin. The presence of + sign can be deemed as a quality indication.

The decision was appealed. According to the company, the combination between letters, numbers and signs can represent a distinctive trademark.

The court dismissed the appeal upholding the EUIPO position. Although not all of the products, consist predominantly of water, still these products contain water so the trademark applied for is descriptive. The + sign is not enough to overcome this.

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