In Turkey, according to Article 5/1(b) and Article 5/1(c) of Industrial Property Code (“the IP Code”) numbered 6769, respectively, “signs which are devoid of any distinctive character” and “signs which consist exclusively of or includes as an essential element of signs or indications which serve in trade to designate the kind, type, characteristics, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or rendering of the services or other characteristics of goods or services” shall not be registered as a trademark.
The trademark application should entirely be evaluated to assess the distinctiveness of a phrase and decide whether it is descriptive or not. The consumers’ perception regarding the goods and services within the scope of the trademark application must also be considered. A trademark that consists of many non-distinctive elements can be considered distinctive in terms of the perception it gives as a whole.
In its recent decision regarding the “VR+” trademark application, which consists of non-distinctive phrases “VR” and “+”, Turkish Patent and Trademark Office (“the Office”) examined whether this trademark application can be registered according to Article 5/1(b) and 5/1(c) of the IP Code. As it is known, the phrase “VR” is an abbreviation of the phrase “Virtual Reality”. This phrase can be explained as “an environment created with three-dimensional computer technologies that people can discover and interact with”. We often encounter this abbreviation in our daily lives.
The phrase “+” is one of the mathematical signs, and it means “plus, addition, more”. The phrase “+” is accepted as a non-distinctive phrase on its own in many decisions of the Court of Cassation[1].
The trademark application “VR+” no. 2019/42910 is sought to be registered for the goods and services in classes 09, 35, 38, 41 and 42. As a result of the examination on absolute grounds made by the Office, the trademark application “VR+” no. 2019/42910 is partially rejected as per Article 5/1(b) and 5/1(c) of the IP Code for mainly the goods and services “Wearable technologic apparatus (smartwatches, bracelets, head-mounted apparatus), cinema films, serials and music videos recorded in magnetic, optic and electronic media. Eyeglasses, sunglasses, optical lenses and their cases, covers, parts and accessories.” inter alia, since the trademark application is not distinctive and the meaning of the phrase “VR” is “Virtual Reality”. The Office rejected the applicant’s appeal against the partial refusal decision, and the partial refusal decision was finalised at the administrative stage.
On the other hand, the trademark application “VR+” no. 2019/42910 was published on the Official Trademark Bulletin no. 336 on November 12, 2019, for the remaining goods and services in classes 09, 35, 38, 41 and 42. A third party filed an opposition for the total refusal of the trademark application as per Articles 5/1(b) and 5/1(c) of the IP Code. In the opposition petition, the third party claimed that the phrase “VR” means “Virtual Reality” and therefore, it is a descriptive and non-distinctive phrase for all the goods and services within the scope of the trademark application, and the “+” sign does not add distinctiveness to the trademark application.
The Office decided the total refusal of the trademark application as per Article 5/1(b) and 5/1(c) of the IP Code with its decision dated 20.10.2021. In its decision, the Office emphasised that the phrase “Virtual Reality”, which can be defined as “the merging of the reality and imagination with fictions created using technology”, is widely used with different technological equipment in many sectors such as education, health, entertainment, military and industrial fields, and that the “+” sign in the trademark application has a perception that strengthens the meaning of the phrase “VR” and does not add any distinctiveness to the application.
There is a trend in certain business sectors to adopt and try to register generic names that are newly created to create a monopoly in the market, and it is good to observe that the Office rejects such applications ex officio, at least partially. However, there may be cases where such applications may pass the examination of the absolute grounds totally or partially. Therefore, brand owners interested in using such generic names without any risks are advised to watch the trademark bulletins for such names and oppose as they deem appropriate.