A HAIRY DECISION FROM OHIM

The OHIM Second Board of Appeal obviously isn’t expert in hair removal.

(Right) No cats were harmed in the writing of this blog

Reckitt & Colman applied to register BLADELESS for various beauty products, including depilatory products and spatulas. The examiner refused the application on lack of distinctiveness and descriptiveness grounds and an appeal ensued.

The Board allowed the appeal, saying that the term was quite ‘senseless’ in relation to the applied for goods, and that it could only be descriptive if two terms were satisfied: (1) that the goods normally featured or consisted of a blade and (2) the goods lacked said blade but still functioned, or even functioned better, without it. This was not the case in relation to any of the applied-for goods.

The IPKat reckons that the Board was obviously unaware of Reckitt’s bladeless depilatory system (heavily advertised in London) which utilises a razor-shaped device without a blade and is marketed as an alternative to razors (details here). Perhaps this is a good reason to have a woman on every appeal board?

The Kat also notes that the Second Board persisted with its flawed approach of considering whether there was a need to keep the mark free for other traders to use under Art.7(1)(b) (distinctiveness) instead of Art.7(1)(c) (descriptiveness).