カテゴリー: Composite mark

ANYTIME FITNESS Unsuccessful Opposition against “anytime 24” mark in relation to fitness service

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On October 17, 2023, the Japan Patent Office (JPO) dismissed an opposition claimed by Anytime Fitness Franchisor LLC against TM Reg no. 6630608 for the mark “anytime 24” in class 41 due to dissimilarity and unlikelihood of confusion with “ANYTIME FITNESS”.

[Opposition case no. 2022-900541]

“anytime 24”

Opposed mark, consisting of “anytime”, “24” and a clock device (see below), was filed by ShinMaywa Industries, Ltd. for use on various services in classes 35, 37, 39 and 41, including sports instruction services; arranging, conducting and organization of seminars relating to sports; production of videotape file in the field of sports; providing electronic publications relating to sports on October 14, 2021.

The JPO granted protection of the “anytime 24” mark on October 19, 2022, and published it for a post-grant opposition on October 31, 2022.

Opposition by ANYTIME FITNESS

Anytime Fitness Franchisor LLC (AFF), an operator of the fastest-growing fitness club “ANYTIME FITNESS” franchise in the world, with more than 4 million members at more than 4,800 gyms on all seven continents, filed an opposition on December 29, 2022.

AFF argued the opposed mark shall be canceled in contravention of Article 4(1)(vii), (viii), (x), (xi), (xv) and (xix) of the Japan Trademark Law on the grounds that “ANYTIME FITNESS” has become famous among relevant consumers as a source indicator of the fitness gym opening 24 hours a day, 365 days a year, and the term “ANYTIME” is a dominant portion of cited mark (TM Reg nos. 5284268 and 5742766) in connection with fitness-related services in class 41. If so, the consumers are likely to confuse the source of the opposed mark with AFF when used on fitness-related services because of close resemblance between the opposed mark and “ANYTIME FITNESS”.

JPO decision

The JPO Opposition Board found the opposed mark, from its configuration, gives rise to a pronunciation and meaning of “anytime” because the digit “24” is inherently descriptive.

In the meantime, the Board held the cited mark has a pronunciation of “ANYTIMIE FITNESS” and does not give rise to any specific meaning as a whole. Even if the word “FITNESS” lacks distinctiveness in relation to fitness-related services, the Board has a reason to believe the cited mark shall be assessed in its entirety by virtue of a tight combination with other elements.

When it comes to compare a dominant portion “anytime” of the opposed mark with “ANYTIME FITNESS”, the consumers are unlikely to confuse the source of two marks from visual, phonetical and conceptual points of view, the Board said.

Based on the foregoing, the JPO concluded dissimilarity of mark and unlikelihood of confusion, and decided to dismiss the opposition entirely.

Japan IP High Court ruled “athlete Chiffon” descriptive in relation to hotel and restaurant services.

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On October 12, 2023, the Japan IP High Court affirmed the JPO refusal decision to TM App no. 2021-93231 for word mark “athlete Chiffon” in class 43 due to a lack of distinctiveness.

[Court case no. Reiwa5(Gyo-ke)10038]

JPO refusal decision

Disputed mark, consisting of two words “athlete” and “Chiffon” in standard character, was filed for use of providing temporary accommodation; accommodation bureaux services; providing foods and beverages in class 43 with The Japan Patent Office (JPO) on July 27, 2021 (TM App no. 2021-93231).

The JPO examiner rejected the mark based on Article 3(1)(iii) and Article 4(1)(xvi) of the Japan Trademark Law by stating that relevant consumers at sight of the disputed mark would merely conceive of a restaurant to provide Chiffon cakes for athletes and it will cause misrepresentation of a particular quality of service when used on other services.

Applicant filed an appeal against the examiner’s rejection. However, the JPO Appeal Board sustained the examiner’s findings and decided to refuse the disputed mark on March 22, 2023.

Appeal to the IP High Court

On April 20, 2023, the applicant filed a lawsuit to dispute registrability of the disputed mark with the IP High Court and asked the court to annul the JPO decision based on the facts that the JPO has allowed registration of lots of trademarks containing the term “athlete”, but none of them restrict its usage of designated goods or services “for athletes”. Cake shops containing a term “Chiffon” in their trade name have even delt with cakes other than chiffon. If so, the JPO obviously made an error in denying distinctiveness of respective term “athlete” and “Chiffon”. Because of it, the JPO refusal decision shall be cancelled.

IP High Court decision

From the produced evidence, the IP High Court found that, in the industry of foods and beverages, terms such as “athlete cake” and “athlete pan cakes” are commonly used to indicate special goods and service for athletes. If so, relevant consumers and traders would consider a term consisting of “athlete” followed by generic word of goods or service as an indication to specify the target of the goods or service (for athletes). “Chiffon” is known in the industry as a term to indicate ‘food that is made light by adding the clear part of eggs that have been beaten’ and commonly used in conjunction with other descriptive term, e.g., “Choco chiffon”, “banana chiffon”, “Valentine chiffon”.

Under the circumstances, the court has a reason to believe that relevant consumers would consider the term “athlete Chiffon” as a mere descriptive indication of the restaurant to provide chiffon (cakes) for athletes when used in relation to the service in question.

Screen capture from “athlete Chiffron” facebook page

A fact that several cake shops containing a term “Chiffon” in their trade name have delt with cakes other than chiffon is irrelevant to the case given the consumers conceive of chiffon cake at sight of the term “athlete Chiffon” when used on restaurant service.

Based on the foregoing, the court held the JPO did not make any error in finding facts and applying trademark law and thus the disputed mark shall be unregistrable under Article 3(1)(iii) and 4(1)(xvi).

Trademark Opposition Case: “DROP” vs “THE DROP”

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In a trademark opposition disputing similarity between “DROP” and “THE DROP”, the Japan Patent Office (JPO) decided to cancel TM Reg no. 6556243 for the mark “DROP” in class 35 due to similarity to IR no. 1258281 “THE DROP” in class 20 owned by Fritz Hansen A/S.

[Opposition case no. 2022-900306, decided on October 2, 2023]

Opposed mark “DROP”

Massdrop, Inc., a US e-commerce company, filed trademark application for word mark “DROP” in standard character for use on retail or wholesales services for various categories of goods including furniture in class 35 on October 9, 2018 (TM App no. 2018-126535).

The mark was registered on May 16, 2022 (TM Reg no. 6556243) and published for post-grant opposition on May 24, 2022.

Opposition by Fritz Hansen A/S

Fritz Hansen A/S, renowned Danish manufacturer of Scandinavian-style furniture, took a partial opposition action against the “DROP” mark on July 26, 2022 and claimed cancellation of the opposed mark in contravention of Article 4(1)(xi) of the Japan Trademark Law due to similarity to earlier IR no. 1258281 “THE DROP” for use on furniture in class 20 owned by the opponent.

Fitz Hasen argued “THE” is merely a definite article with no particular meaning for Japanese citizens with ordinary care. It commonly happens in Japan that consumers do not pay attention to definite article in the prefix where it is followed by other words. For example, “THE BEATLES” is called just as “BEATLES”. The Japanese title of the movie “The Lord of the Rings” does not include “THE”. Under the circumstance, relevant consumers would consider “DROP” as a prominent portion of the cited mark. Therefore, the opposed mark shall be similar to the cited mark. Besides, the goods “furniture” in class 20 is deemed similar to retail or wholesale services for furniture in class 35.

If so, the opposed mark should be canceled in relation to “retail or wholesale services for furniture” of class 35 under Article 4(1)(xi).

JPO decision

In the decision, the JPO Opposition Board mentioned “THE” is a definite article that functions to specify the following noun, however is usually not translated into Japanese. A basic English word “THE”, familiar among general public in Japan, is less distinctive as a source indicator per se. It is quite possible that relevant consumers and traders at the sight of the cited mark would highly focus on the term “DROP” of the cited mark.

Therefore, the Board has a reason to believe the cited mark gives rise to a pronunciation of “DROP” and a meaning ‘a small round-shaped amount of liquid’.

If so, the opposed mark has the same sound and concept with the cited mark.

A mere difference in appearance is insufficient to find dissimilarity of mark since the opposed mark consists of the same alphabets with “DROP” of the cited mark.

Also, the Board found “furniture” in class 20 shall be deemed similar to “retail or wholesale services for furniture” in class 35 by taking into consideration commercial channels, suppliers and consumers of respective goods and services.

Based on the foregoing, the Board sided with Fritz Hansen A/S and decided a partial cancellation of the opposed mark in relation to “retail or wholesale services for furniture”.

JPO Declared Cancellation of Trademark “BORDEAUX WAVE” on Cosmetics

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The Japan Patent Office (JPO) decided to cancel TM Reg no. 6576001 for word mark “BORDEAUX WAVE” in relation to cosmetics due to contrary to public policy and accepted principles of morality.

[Opposition case no. 2022-900374, decided on September 1, 2023]

Opposed mark “BORDEAUX WAVE”

KAO Corporation, a major Japanese company providing a broad range of household products such as cosmetics and detergents, filed a trademark application for the wordmark “BORDEAUX WAVE” with its transliteration written in Japanese Katakana character (see below) for use on soaps and detergents, cosmetics, perfume and flavor materials, incense in class 3 with the JPO on December 22, 2021.

Apparently, the mark is used as a name for one of the RMK lipstick colors distributed by KAO’s subsidiary company.

The JPO examiner did not raise any objection to the “BORDEAUX WAVE” mark and granted protection on June 2, 2022.

Trademark Opposition

On August 31, 2022, before the lapse of a two-month statutory period counting from the publication date, INSTITUT NATIONAL DE L’ORIGINE ET DE LAQUALITE and CONSEIL INTERPROFESSIONNEL DUVIN DE BORDEAUX as joint opponents filed an opposition against the BORDEAUX WAVE mark and claimed the opposed mark shall be canceled in contravention of Article 4(1)(vii) of the Japan Trademark Law.

The opponents argued that the opposed mark misleads as to the origin of the goods in question on which it is used since the GI “Bordeaux” has been widely known for an origin of French Wine. Besides, the opposed mark severely harms to fame and aura of prestigious wine constituted under the strict control of domicile of origin.

Article 4(1)(vii)

Article 4(1)(vii) prohibits any mark likely to offend public order and morals from registering.

Trademark Examination Guidelines sets forth criteria for the article and samples.

  1. Trademarks that are “likely to cause damage to public order or morality” are, for example, the trademarks that fall under the cases prescribed in (1) to (5) below.

(1) Trademarks which are, in composition per se, characters or figures, signs, three-dimensional shapes or colors or any combination thereof, or sounds that are unethical, obscene, discriminative, outrageous, or unpleasant to people. It is judged whether characters, figures, signs, three-dimensional shapes or colors or any combination thereof, or sounds are unethical, discriminative or unpleasant to people, with consideration given to their historical backgrounds, social impacts, etc. from a comprehensive viewpoint.

(2) Trademarks which do not have the composition per se as prescribed in (1) above but are liable to conflict with the public interests of the society or contravene the generally-accepted sense of morality if used for the designated goods or designated services.

(3) Trademarks with their use prohibited by other laws.

(4) Trademarks liable to dishonor a specific country or its people or trademarks generally considered contrary to the international faith.

(5) Trademarks whose registration is contrary to the order predetermined under the Trademark Act and is utterly unacceptable for lack of social reasonableness in the background to the filing of an application for trademark registration.

  1. Examples that fall under this item

(i) Trademarks that contain characters such as “university” and are likely to be mistaken for the name of universities, etc. under the School Education Act.

(ii) Trademarks that contain characters such as “士（shi）” which are likely to mislead that they represent national qualifications.

(iii) Trademarks of the name of a well-known or famous historical personage which are determined to have the risk of taking a free ride on public measures related to that personage and damage the public interests by inhibiting the performance of such measures.

(iv) Trademarks with figures indicated in a manner that may impair the dignity and honor of national flags (including foreign national flags)

(v) A sound mark related to the services of “medical treatment” which causes people to recognize siren sounds generated by ambulances that are well known in Japan.

(vi) A sound mark which causes people to recognize national anthems of Japan and other countries.

JPO Decision

The JPO Opposition Board found in favor of opponents that “BORDEAUX” has acquired a high degree of popularity and reputation among Japanese consumers as a source indicator of wines originated from the Bordeaux district.

Since the opposed mark contains the term “BORDEAUX”, it is undeniable that consumers are likely to connect the opposed mark with BORDEAUX wine or its district even when used on cosmetics and other goods in question. If so, the Board has a reason to believe that the opposed mark free-rides or dilutes lure and image of BORDEAUX wine, and adversely affects domicile of origin strictly controlled by French government. Thus, inevitably the opposed mark may cause disorder to a world of global commerce in a manner inconsistent with international fidelity.

Based on the foregoing, the Board decided to cancel the BORDEAUX WAVE mark entirely based on Article 4(1)(vii).

Shangri-La Unsuccessful in Trademark Opposition Over “Shangri-La Golf”

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The Japan Patent Office (JPO) dismissed an opposition claimed by Shangri-La Hotels against TM Reg no. 6610570 for the mark “Shangri-La-Golf” in class 35 due to dissimilarity between “Shangri-La” and “Shangri-La-Golf”.

[Opposition case no. 2022-900465, decided on July 26, 2023]

Opposed mark

A Japanese individual filed a stylized word mark “Shangri-La-Golf” (see below) for use on retail and wholesale services in relation to woven fabrics, beddings, clothing, footwear, and personal articles in class 35 with the JPO on June 22, 2020.

The JPO examiner rejected the mark in contravention of Article 4(1)(xi) of the Japan Trademark Law by citing earlier trademark registrations for wordmark “SHANGRI-LA”.

However, as a result of the JPO Appeal Board’s decision that found dissimilar to “SHANGRI-LA”, the mark could be registered on September 6, 2022.

Opposition by Shangri-La Hotels

Shangri-La International Hotel Management Ltd filed an opposition against the opposed mark on November 11, 2022 and argued the opposed mark shall be canceled in contravention of Article 4(1)(vii), (viii), (x), (xi), (xv), and (xix) of the Japan Trademark Law due to a remarkable degree of recognition of the cited mark “Shangri-La” and close resemblance between the opposed mark and “Shangri-La”.

JPO decision

The JPO Opposition Board questioned a remarkable degree of recognition of the cited mark among relevant public in Japan by stating that the produced evidence is insufficient to find such recognition objectively.

As for appearance, sound and meaning of the opposed mark, the Board found

“The opposed mark consists of “Shangri”, “La”, and “Golf” written in the same font and size, and tightly united by a hyphen (-). Visually, there is no reason to find respective element perse independently plays a role in source indicator of the opposed mark. Besides, the sound arising from the opposed mark as a whole can be pronounced easily.

Even if the term “Golf” has the meaning of a kind of ball game, it is reasonable to find that the term would not be recognized as directly indicating a descriptive meaning or specific quality of the services in question. Relevant consumers would see the opposed mark as a whole.

Therefore, the opposed mark shall be assessed in its entirety and give rise to a pronunciation of “Shangri-La-Golf” and no specific meaning.”

Based on the above finding, the Board decided the opposed mark “Shangri-La-Golf” is dissimilar to the cited mark “Shanri-La” because there is visual and phonetical distinction between the marks by virtue of the term “Golf” and the opposed mark does not give rise to a meaning related to ‘a remote usually idyllic hideaway’.

Accordingly, the Board found the opposition baseless and decided the opposed mark remains as the status quo.

Unsuccessful Trademark Opposition over MONCLER Logo Outline

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On May 5, 2023, the Japan Patent Office (JPO) dismissed an opposition against the composite mark (TM Registration no. 6561093) filed by Moncler SpA, the Italian luxury fashion label, due to the dissimilarity to a device mark for the Moncler logo outline (Opposition no. 2022-900312).

Opposed mark

On December 4, 2021, COCOMi Corporation sought registration with the JPO of the composite mark consisting of the word “CONOMi” beneath the C logo and encircling outline (see below) for use on bags and pouches in Class 18 and apparel in Class 25.

The mark was registered on May 25, 2022, without receiving any refusal in the course of the substantive examination by the JPO. Thereafter, the mark was published for post-grant opposition on June 2, 2022.

Opposition by MONCLER

Italian luxury fashion brand MONCLER filed an opposition on July 28, 2022, contending that the opposed mark should be canceled for being in contravention with Article 4(1)(xi) and (xv) of the Japan Trademark Law.

MONCLER argued the opposed mark was similar to the earlier IR no. 991913 for the bell-shaped device mark representing the Moncler logo outline (see below) and was likely to cause confusion with MONCLER due to the resemblance between the opposed mark and Moncler’s famous mark, and the close relatedness of the goods in question with MONCLER’s business.

JPO decision

The JPO Opposition Board considered the relevant consumers would not see the encircling outline as a prominent portion of the opposed mark by taking account of the coined word “COCOMi” and the entire visual configuration of the mark.

In so far as the encircling outline of the opposed mark perse would not play a role in identifying the source of goods in question, regardless of the resemblance between the encircling outline and the cited mark, the Board has a reason to believe both marks are dissimilar from visual, aural and conceptual points of view in its entirety.

Given the low level of similarity with the cited mark or the Moncler emblem, the Board had no reason to find that there would be a likelihood of confusion where the opposed mark is used on the goods in question, even though the Moncler emblem has acquired a certain degree of reputation and popularity among relevant consumers in Japan.

Moncler emblem

Consequently, the JPO did not side with MONCLER and decided to dismiss the opposition entirely.

Trademark case: Wilson vs Werwilson

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The Japan Patent Office (JPO) dismissed an opposition filed by Wilson Sporting Goods Company against TM Reg no. 6520718 for the mark “Werwilson” with a device in class 25 by finding less likelihood of confusion with “Wilson”, the iconic American sporting goods brand when used on goods in class 25.

[Opposition case no. 2022-900124, decided on March 29, 2023]

Opposed mark

The opposed mark, consisting of two literal elements “Wer”, “wilson” and encircled “w” device placed in between them (see below), was sought registration by a Chinese company for use on apparel, footwear, and sports shoes in class 25 with the JPO on July 9, 2021.

The JPO granted protection of the opposed mark and registered on March 1, 2022, and published it for a post-grant opposition on March 9, 2022.

Opposition by Wilson

On March 28, 2022, Wilson Sporting Goods Company, originally known as the Ashland Manufacturing Company, created in 1913 in Chicago (US), a subsidiary of Amer Sports Corporation, opposed registration and claimed the opposed mark is confusingly similar to earlier registrations for their iconic mark “Wilson” (see below) and thus shall be canceled in contravention of Article 4(1)(xi), (xv) and (xix) of the Japan Trademark Law.

Wilson argued that visually the opposed mark can be conceived of as “We’re Wilson”. By virtue of a high level of brand recognition of “Wilson”, the opposed mark would give rise to a pronunciation and meaning of “Wilson” from its prominent portion. Given a close association of goods and consumers between the opposed mark and Wilson, relevant consumers are likely to confuse a source of the goods in question bearing the opposed mark with Wilson or another entity economically or systematically connected with the opponent.

JPO decision

The JPO Opposition Board admitted the famousness of the “Wilson” mark as a source indicator of the opponent in connection with tennis and sporting goods among relevant consumers in Japan.

However, the Board found that the opposed mark would not be conceived of as “We’re Wilson” from its configuration. Besides, the opposed mark does not give rise to the pronunciation and meaning of “Wilson” as a whole or in part.

If so, both marks are dissimilar from visual, phonetical, and conceptual points of view.

In view of the low degree of similarity of the marks, the Board has a reason to believe that relevant consumers with ordinary care are unlikely to confuse the source of goods in question using the opposed mark with Wilson.

Based on the foregoing, the JPO dismissed the entire allegations and decided that the opposed mark shall remain valid as the status quo.

Johnson’s baby vs. JOHANSON bebis

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The Japan Patent Office (JPO) did not side with Johnson & Johnson in trademark opposition who sought cancellation of TM Reg no. 6559102 for the “JOHANSON bebis” mark due to similarity to or likelihood of confusion with “Johnson’s baby”.

[Opposition case no. 2022-900314, decided on February 22, 2023]

JOHANSON bebis

JOHANSON LIFE Co., Ltd., a Korean company, filed the “JOHANSON bebis” mark (see below) for use on babies’ bottles and nasal aspirators in class 10 with the JPO on June 28, 2021.

Apparently, the company promotes babies’ bottles bearing the applied mark.

The mark was registered by the JPO on May 20, 2022, and published for opposition on May 30, 2022.

Johnson’s baby

Johnson & Johnson, one of the oldest pharmaceutical companies in the US, has owned TM Reg no. 4032368 for the stylized word mark “Johnson’s baby” (see below) on baby bottles, nursing bottles, teats, feeding cups, and cotton swabs in class 10 since 1997.

Johnson & Johnson filed an opposition against the “JOHANSON bebis” mark on August 1, 2022, and argued the opposed mark shall be canceled in contravention of Article 4(1)(xi) and (xv) of the Japan Trademark Law due to visual and phonetical similarity and the likelihood of confusion between “JOHANSON bebis” and “Johnson’s baby” that has been famous for skin care products for baby when used on designated goods in class 10.

JPO Decision

The Opposition Board pointed out the produced evidence shows substantial use of the “Johnson’s” mark, however, none of them demonstrate actual use of the cited mark. If so, the Board has no reason to believe the cited mark has been well-recognized among relevant consumers in Japan.

As for the similarity of the mark, the Board found there is no risk of confusion between the opposed mark and the cited mark in appearance by means of the presence or absence of the device, and difference in the arrangement, composition, and number of alphabets.

Comparing the sound of “Johanson bebis” with “Johnson’s baby”, they are clearly distinguishable due to their different sound structures, and there is no risk of confusion in sound.  Besides, while the opposed mark does not have any specific concept, the cited mark gives rise to the meaning of “Johnson’s baby,” so there is no likelihood of confusion between the marks in the concept. If so, the opposed mark shall be dissimilar to the cited mark from visual, phonetical, and conceptual points of view.

Assuming that the cited mark has not been widely recognized as a source indicator of Johnson & Johnson and has a low degree of similarity to the opposed mark, it is unlikely that relevant consumers would confuse a source of goods in question bearing the opposed mark with Johnson & Johnson.

Based on the foregoing, the Board decided to dismiss the entire allegations and found the opposed mark shall not be canceled in contravention of Article 4(1)(xi) and (xv) in relation to the cited mark.

TM Race: Which is Registrable, “Virtual Marathon” or “Virtual Tokyo Marathon”?

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In a recent administrative decision, the Japan Patent Office (JPO) found the word mark “Virtual Marathon” lacks distinctiveness in relation to marathon races of class 41 although the JPO admitted registration of the word mark “Virtual Tokyo Marathon” in the same class.

[Appeal case no. 2022-001910, Decision date: December 12, 2022]

Virtual Marathon

During the COVID-19 pandemic when large gathering in person is not possible, many major running decided to go virtual around the globe.

On March 30, 2020, R-bies Co., Ltd., a Japanese company managing sports events and sports media, filed a word mark “Virtual Marathon” written in Japanese Katakana characters (see below) for use on various goods and services including marathon races in classes 9, 41, and 42.

Virtual Tokyo Marathon

Three months later, Tokyo Marathon Foundation filed a trademark application for the word mark “Virtual Tokyo Marathon” in standard character on various goods and services in classes 9, 35, 36, 38, 41, 42, and 45.

The JPO did not raise any objection to the Virtual Tokyo Marathon mark and granted protection on June 21, 2021.

Examiner’s Refusal

In the meantime, on April 7, 2021, the JPO examiner raised her objection to the Virtual Marathon mark due to a lack of inherent distinctiveness in relation to sports events and marathon races of class 41 by stating that the term “virtual marathon” is commonly used to indicate an organized event where participants run a full marathon in an individual place of their choice during a specific date range tracked on an app on their smartphones. If so, the mark “Virtual Marathon” shall not meet the requirements of Article 3(1)(iii) of the Japan Trademark Law. The applicant filed a written response and argued the distinctiveness of the mark, however, the examiner did not withdraw her objection and decided to reject the entire application on November 8, 2021.

R-bies Co., Ltd. filed an appeal to the refusal on February 8, 2022, and argued the inherent distinctiveness of the Virtual Marathon mark by citing a junior trademark application for the “Virtual Tokyo Marathon” mark that was considered distinctive in relation to the same goods and services (TM Reg no. 6420795).

JPO decision

The JPO Appeal Board affirmed the examiner’s findings by citing a lot of web articles pertinent to virtual marathon races organized in Japan.

Under the circumstance, the Board has a reason to believe that relevant consumers at the sight of the Virtual Marathon mark are likely to conceive of online footrace in which each participant goes out and runs the full marathon in their own time, not as a source indicator of sports event managed by R-bies Co., Ltd. or other specific entity.

Based on the foregoing, the Appeal Board upheld the examiner’s refusal and decided to reject the word mark “Virtual Marathon” in contravention of Article 3(1)(iii).

As a matter of interpretation of the Trademark Law, provided that “Virtual Marathon” is to be rejected under Article 3(1)(iii), “Virtual Tokyo Marathon” shall be rejected on the same ground as well unless Tokyo Marathon Foundation demonstrates acquired distinctiveness of the mark as a result of substantial use. I believe it is impossible because the Tokyo Marathon was never virtually started before registration.