JUST SKIN is descriptive, says OHIM
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In Chantecaille Beauté Inc v Office for Harmonization in the Internal Market (OHIM) (Case R 1720/2008-4, May 26 2009), the Fourth Board of Appeal of OHIM has refused to register the trademark JUST SKIN for goods and services in Classes 3 and 35 of the Nice Classification on the grounds that the mark was descriptive of the goods and services in question.
US company Chantecaille Beauté Inc applied to register the mark JUST SKIN as a Community trademark for “foundation, cosmetics and fragrances” in Class 3 and “retail store services in connection with cosmetics and fragrances” in Class 35. The OHIM examiner rejected the application and Chantecaille appealed.
Chantecaille argued that:
- the word composition 'just skin' was "complex, novel and characteristic for the consumers"; and
- the expression was not a "necessary or essential designation for the goods and services applied for".
The board first considered the descriptiveness of the mark. It held that the goods and services concerned were aimed at the general public. Since the mark was composed of English words, the board focused primarily on English-speaking consumers in the European Union.
The board’s view was that consumers would perceive the mark as the combination of two common words referring to “the kind and basic purpose of the goods and services”. The board further held that the mark JUST SKIN simply informed consumers - in common language and with no unusual variation in syntax - that the goods and services at issue were exclusively meant for skin care.
The board concluded that the trademark JUST SKIN related to the nature, qualities and purpose of the goods and services, and was thus descriptive.
The board then turned to the issue of distinctiveness. The board found that JUST SKIN lacked distinctive character, as it cannot serve to identify the goods or services at issue as originating from a particular undertaking.
In light of the foregoing, the board dismissed the appeal.
Although it is true that the JUST SKIN mark is not particularly distinctive for goods in Class 3, one might argue that:
- the expression 'just skin' could be understood in other ways - for example, consumers may perceive the mark as meaning that the cosmetics cannot be felt on the skin; and
- JUST SKIN is not descriptive of services in Class 35, even if they relate to cosmetics.
Séverine Fitoussi and Jean-Philippe Bresson, INLEX IP EXPERTISE, Paris
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