The descriptive character of the two-letter trademark “QD” (LG Electronics) – Ruling of the EU General Court in Case T-650/16
On 12 January 2015, the company LG Electronics Inc. submitted the mark “QD” to the EUIPO. The application was made for: “television receivers; mobile phone; smartphones; tablet computers; computers; sound recording devices; image recording devices; sound transmission devices; image transmission devices; sound playback devices; image reproduction devices; software; software for interactive television; communications software; computer software” belonging to class 9 of the Nice Classification.
In a decision of 19 August 2015, the application for registration of the mark was dismissed in relation to all goods, on the basis of Article 7 par. 1b) and c) of Regulation No. 207/2009 due to the absence of any distinctiveness of the sign and given that the mark consists solely of a descriptive element in relation to the goods for which it was submitted.
LG Electronics Inc. disagreed with that decision and lodged an appeal with the EUIPO on 9 October 2015. Subsequently, in a decision of 24 May 2016, the Board of Appeal of the EUIPO dismissed the appeal, ruling that the word mark “QD” is descriptive for the goods the submission referred to.
LG Electronics Inc. disagreed with that decision and lodged an appeal with the EUIPO on 9 October 2015. Subsequently, in a decision of 24 May 2016, the Board of Appeal of the EUIPO dismissed the appeal, ruling that the word mark “QD” is descriptive for the goods the submission referred to. The Board of Appeal of the EUIPO emphasized that the abbreviation “QD” can be understood as meaning “quantum dot”, referring to the construction of a display that uses small, light-emitting crystals. That technology is used in particular in television sets, monitors and portable devices. Because the application for registration concerned electronic devices and software, the Board of Appeal of the EUIPO confirmed that the word mark “QD” was a direct, obvious reference to the nature of those products.
The Board of Appeal of the EUIPO also confirmed the opinion that the mark submitted for registration is devoid of distinctiveness.
On 24 May 2016, the plaintiff moved for the invalidation of the EUIPO decision, arguing that the Board of Appeal of the EUIPO incorrectly understood the abbreviation “QD” and that the mark “QD” is not descriptive in relation to the goods for which it was submitted.
In respect of the first argument, the EU General Court confirmed that the ratio legis of Article 7 par. 1c) is to protect the public interest, which requires that marks meeting the above standards can be freely used by other market players, and is to prevent right holders from unjustifiably gaining a monopoly. Further, the General Court pointed out that this type of sign does not make it possible to distinguish the origin of goods.
The character of a designation must be first evaluated in relation to how it will be understood by the relevant consumer group and, second, in relation to given goods or services. In the case at hand, the General Court found that the relevant consumer group comprises consumers and professionals who will show an average level of attention (with the exception of the software, towards which the consumers are particularly well informed and attentive).
The General Court did not share the argument of the plaintiff that the mark “QD” can be an abbreviation of the Latin phrase “quaque die” (“every day”) or that the abbreviation “QD” meaning “quantum dot” does not appear in any commonly used dictionary. The General Court found that the determinations of the Board of Appeal of the EUIPO made on the basis of internet dictionaries specializing in the subject of electronics were correct. The General Court also rejected the idea of associating the mark “QD” with the Latin phrase “quaque die”.
The General Court found that the letter combination “QD” undoubtedly corresponds to the nature of the goods and electronic software, which permits the conclusion that there exists a sufficiently direct, specific relationship between them that allows consumers to immediately perceive the mark as a description of one of the characteristics of such goods. In light of these findings, the General Court ruled that the mark “QD” is descriptive in nature in relation to goods from class 9 and therefore dismissed the complaint.