Samsung Electronics won an invalidation proceeding against the following European trademark registered for classes 9, 20 and 35:
The invalidation was based on absolute grounds – descriptiveness in relation to the trademark’s goods and services. The applicant argued that its mark was distinctive because when it was applied for in 2012 it wasn’t included in dictionaries and on top of that the concept for the internet of things wasn’t popular among consumers.
Initially, the EUIPO dismissed Samsung’s request stating that although Smart Things are descriptive words the presence of an emoticon in the sign is enough to create a necessary level of distinctiveness.
The decision was appealed.
According to the Board of Appeal, the trademark at hand is fully descriptive for the relevant goods and services and this cannot be overcome by the emoticon. What’s more, this phrase has to be left free for use for all market participant taking into account that it is highly used for different technologies. The fact that it wasn’t included in a dictionary in 2012 is irrelevant for the case.