Published: March 20, 2024
AirDoctor, LLC, the applicant for the mark AMAZING AIR, lost its trademark battle against the European Union Intellectual Property Office (EUIPO) before the General Court on January 31, 2024. Case T-269/23.
The case started in 2022 when the applicant filed an application to register an EU Trade Mark with the EUIPO for the word sign AMAZING AIR to cover air purifiers in Class 11. The EUIPO rejected the application and AirDoctor, LLC’s appeal, finding that the mark was devoid of any distinctive character and would be perceived as meaning “very good air” and therefore as a laudatory statement in relation to air purifiers.
AirDoctor, LLC appealed to the General Court, claiming that the word “amazing” would not be immediately understood in the sense of “very good” and that the mark applied for was an unusual combination of words requiring at least some interpretation by the relevant public. The applicant also claimed that the applied-for mark could be regarded as a promotional formula or an advertising slogan, and the fact that it was allegedly laudatory in nature did not prevent it from having distinctive character.
The EUIPO disputed the applicant’s arguments. The Board of Appeal agreed with the EUIPO, finding that the goods concerned were aimed at the general public—although with respect to the portion of the public made up of professionals, whose level of attention varies from average to high. Secondly, it found that the public would understand the expression “amazing air” as meaning “very good air,” referring to air of good quality. Additionally, it considered that the mark applied for had no stylistic elements and concluded that the relevant public would immediately understand that the applied-for mark was a promotional and laudatory message.
In light of all of this, the General Court dismissed the action in its entirety.
Winning a battle for distinctiveness seems very challenging in any court if there is even a slight absence of irony, implication, or connotation in a word, and the word has the capacity to directly reference the product.
Kerem Gokmen
Read on INTA.org: https://www.inta.org/perspectives/law-practice/european-union-general-court-rejects-airdoctors-appeal-for-distinctiveness/
