We are a boutique IP firm located in Osaka, Japan, specializing in trademark, design, specific unfair competition and copyright matters.

Bottom line: The Board found both marks are represented in a commonly used manner and not registrable for being descriptive of the goods.

Following to our previous report (No. 036) regarding a surname represented in a “common manner”, we picked up two cases in which “common manner” is disputed as well.

It is somewhat challenging to introduce the following two cases here because the marks at issue are both written in Japanese and I understand many of you reading this are not familiar with Japanese characters.  Yet, we believe these cases may give some hint as to “common manner” of representation.

Case 1: Appeal No. 2013-2887 (November 18, 2013)

[Applied-for mark]

The mark above literally means “bigger than those for baby, smaller than those for adult” and the designated goods are sanitary masks, disposable diapers for incontinence, etc.

The Board noted the font border and the difference of font size and color, but found that such representation is within a commonly used manner and the mark merely describes the quality of designate goods.

Case 2: Appeal No. 2013-10355 (November 28, 2013)

[Applied-for mark]

This mark is written vertically and reads from right to left.  Each line can be translated to: of Setouchi (geographical name) origin / using dried baby sardines / Shodoshima (another geographical name) / eat (eatable) / olive / oil.  As a whole, it means “eatable olive oil made in Shodoshima using dried baby sardines of Setouchi origin”.  The designated goods are bottled olive oils made in Shodoshima with processed fishery products principally dried baby sardines.

The Board found that each literal element is inherently indistinctive with respect to the designated goods.  The applicant made an argument that the combination of the background design of olive branch and fruit and “EAT” in red color is distinctive to the eye of general consumer.  The Board however found that such representation is yet within a commonly used manner in view of the same or similar goods on the market, and concluded that the mark as a whole merely describes the quality and the place of origin of goods.

So neither mark here was granted for registration.