NEWSLETTER-2019-metin

264 NEWSLETTER 2019 tion of those signs will be refused in accordance with Article 5/1-a of the IPC. The European Union Intellectual Property Office (“EUIPO”) has a decision on record rejecting the trademark application for reg- istration of an artificial strawberry flavor on the grounds that it is not capable of being represented in the register 1 . According to Article 5/1-b of the IPC, ‘Signs that are devoid of any distinctive character’ shall not be registered as a trademark. For example, while ‘Aroma’ sign is not distinctive for coffees under Class 30, ‘Fresh Sardines’ sign is not distinctive for sardines under Class 29. Similarly, the European Court of Justice (“ECJ”) has ruled in the Henkel Tablet decision that the washing tablet, as shown in the image, does not have a distinctive character in order to be registered as a trademark 2 . According to Article 5/1-c of the IPC, ‘Signs that consist exclu- sively, or include as an essential element of signs or indications, which serve in trades to designate the kind, type, characteristics, quality, quantity, intended purpose, value, geographical origin, or the time of production of goods, or of rendering of the services, or other charac- teristics of goods or services,’ shall not be registered as a trademark. For example ‘BROWNIE’ sign for nutrition goods under Classes 29 and 30, ‘PLAYGROUND’ sign for entertainment services under Class 41, and signs such as ‘S, M, L’which show the sizes of the products for the goods under Class 25, will be found to be descriptive by the Office. However, as it is regulated under Article 5/2 of the IPC, if a trade- mark has been used prior to its application, and through this use has acquired a distinctive character in respect of the goods and services subject to the application, the registration of this trademark may not be refused based on its non-distinctive or descriptive character. Article 5/1-ç of the IPC regulates that ‘Signs that are identical to, or indistinguishably similar to, a trademark, which has been regis- tered, or for which registration has been applied, relating to identical goods and services, or to goods and services of the identical type’ shall not be registered as a trademark. According to the Office, the phrase, 1 Lilly, Eli : The taste of artificial strawberry flavour, R120/2001-2 (4 Aug. 2003). 2 Henkel v OHIMC-456/01 P and C-457/01.