Registrar finds no distinctive charge in battery colours
The registrar of trademarks has refused Gillette’s application for a two-dimensional representation of a battery device in copper and black. Gillette had applied for the mark for “electric power sources, namely, electrochemical cells, batteries” in Class 9. However, the registrar found that the mark consisted exclusively of a sign that designated the characteristics of the goods applied for and was devoid of distinctive character.
Representation of the battery device
While the copper and black colour combination did not refer the consumers to the electrochemical cells and batteries, the use of the colours on the representation of the battery did have this effect. Therefore the colours should be considered not in isolation, but rather as part of the representation of the battery.
The registrar held that members of the public are used to seeing different colours on goods, so they would be unlikely to regard the particular colours of the applicant’s mark as anything other than a description of the goods themselves. The mark, being a colour representation of a battery that only served to designate the kind of goods applied for, was also devoid of distinctiveness.
Gillette also submitted two sets of evidence to support its argument that its mark had acquired distinctiveness through use. The first set, which included an in-house survey conducted by Gillette's Hong Kong agents among its staff, was rejected as the registrar considered that the survey results were neither reliable nor impartial. The second set of evidence showed use of the mark with DURACELL and/or with its equivalent Chinese mark. The registrar rejected this too, as despite such combined use, he was not satisfied that the relevant consumers actually perceived the mark to designate that the goods in question came from a given undertaking.
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