Rejection 2024-012154 (JP Appl. No. 2023-076250)

The applied-for-trademark consists of English letter string “NIGHT MUSK” horizontally. This wording is not listed in dictionaries.

Even though “NIGHT” is a word meaning “night” in English and “MUSK” is a word meaning “fragrance of musk”, it is not possible to say that some specific meaning would be recognized from the applied-for-trademark as a whole. Further it is not possible to find circumstances to say the above.

The Appeal Examiners were unable to find specific reasons to express a fragrance as “NIGHT MUSK in katakana”, even though there were a few cases where “NIGHT MUSK in katakana” is used to express a fragrance of goods in the field of the designated goods found through ex-officio searches. “NIGHT MUSK in katakana” is not used to express a fragrance of goods common to all cases.

In addition, the Appeal Examiners did not find any circumstances in which “NIGHT MUSK in katakana” has been commonly used to determine that traders and consumers should understand and recognize “NIGHT MUSK in katakana” as indications of the quality of the goods (contents of fragrance) in the field of the designated goods.

With the above in mind, it is reasonable to say that the applied-for-trademark is a coined word without a specific meaning. The applied-for-trademark is distinctive because it is not possible to say that the applied-for-trademark consists solely of a mark indicating quality in a common manner in connection with the designated goods. Further, it is not possible to say that it misleads as to the quality of the goods.

Thus, the applied-for-trademark should be registered.

The applicant argued that the applied-for-trademark is a coined word because there is no fragrance of “NIGHT MUSK” in this world and because the specific fragrance of “NIGHT MUSK” is unclear and because (1) there is no evidence to show that the applied-for-trademark indicates quality and (2) because it is not possible to say that the applied-for-trademark “NIGHT MUSK” is commonly used to indicate contents of fragrance. Further, the applicant argued that the applied-for-trademark is distinctive because “NIGHT MUSK” has alternate meanings.