In the UK trademark office, the ‘appointed Person’ has overturned a ‘hearing officer’s decision concerning a trace mark application filed by Coca Cola for “NO HALF MEASURES” applied for in relation to various services in class 41, including education, training, entertainment and sporting activities. (It is not recorded if the overturning resulted in spillage).
Unlike the hearing officer who considered the mark devoid of distinctive character, and therefore not registerable under section 3(1)(b) of the Trade Marks Act 1994, the appointed person considers the mark not devoid of distinctive character. The hearing officer, Mr. J Pike, had considered that the mark was nothing more than a slogan which sent a message – that the applicant provided services which would meet consumers’ requirements, even if their expectation levels were high – which could apply to any undertaking.
This is in line with an Israel Trademark decision regarding a Coca Cola advertising slogan – of the World. The Appointed Person, cited the recent ECJ decision in Audi AG v OHIM, Case C-398/08, see http://blog.ipfactor.co.il/2010/01/25/european-court-of-justice-recognizes-vorsprung-durch-technik-as-distinctive-trademark/ and held that the mere fact that a mark was perceived as being a promotional statement and, because of its laudatory nature, could be used by others, was insufficient per se to support a finding of non-distinctiveness under section 3(1)(b). He went on to rule that a mark could convey an objective message and still indicate origin, and the mark in issue had distinctive character for the services applied for.
Case: In the matter of application no. 2472042 in class 41 by The Coca-Cola Company, and an appeal to the Appointed Person against the decision of Mr A J Pike dated 30 April 2009, 28 February 2010.
