Appeal No. 2022-7113 (JP Trademark Appl. No. 2021-70414)

The Examiner has judged that the applied mark is similar to cited mark .  Additionally, the designated goods of the cited mark include the designated goods of the applied mark.  Thus, the Examiner has issued a decision of refusal against the applied mark.

The trial Examiners for the appeal have judged that the Examiner’s judgement is wrong.

October 31, 2022

(the applied mark)

(the cited mark: JP Reg. No. 6343290)

(Applied Mark: JP Appl. No. 2021-70414)
  false eyelashes in Class 3.

(Cited Mark: JP Reg. No. 6343290)
  Soaps and detergents; dentifrices; cosmetics; perfume and flavour materials; incense; false nails; false eyelashes in Class 3.

In appearance

 The applied mark does not consist of English characters in cursive script; rather, it is a kind of figure.
 The cited mark consists of UPPER part, namely, “CALM” (not-stylized) and LOWER the lower part, namely, “ ” (the transliteration of “CALM”, written in KATAKANA Japanese characters (not-stylized)).
 Thus, the applied mark is clearly different from the cited mark in appearance.

In sound

 The applied mark does not have a specific sound.
 Thus, nobody will confuse the applied mark with the cited mark in sound.

In concept

 The applied mark does not have a specific concept.
 Thus, nobody will confuse the applied mark with the cited mark in concept.

  In view of the above, the applied mark is not similar to the cited mark.  Therefore, the trial Examiners for the appeal have withdrawn the Examiner’s judgement, namely, the decision of refusal against the applied mark based on the grounds that the applied mark is similar to the cited mark.

  For the applied or registered mark that consists of alphabetical characters written in cursive script, if the design level of such script is quite high (that is, if it is difficult to recognize that such script consists of alphabetical characters), the JPO will handle the script as a kind of figure.

 Please compare this case with our previous report.