31 July 2018

General Court considers distinctiveness of BLUE in respect of soft drinks and non-alcoholic beverages

In 2016 Ms Fenvyes filed an EU trade mark application for an EU figurative mark "BLUE" (above) in respect of soft drinks and non-alcoholic beverages (class 32); advertising (class 35); Entertainment services; Organising events for entertainment purposes; Organisation of shows; Music concerts (class 41).

The Examiner rejected the application for the goods listed in class 32 on the grounds that the mark was devoid of any distinctive character because it served to describe the characteristic of the goods (soft drinks and non-alcoholic beverages).

The applicant appealed against the decision of the Examiner, but the Fifth Board of Appeal of EUIPO dismissed the appeal. Ms Fenvyes then appealed the decision before the General Court.

The Court clarified that the essential function of a trade mark is to be capable of identifying the commercial origin of the goods or services, allowing consumers to repeat the purchase if the experience was positive or to make another choice if the experience was negative. Hence, a mark is incapable of performing this essential function when the sign may serve to designate the characteristic of the goods or services protected under the mark. In order to assess whether a sign is descriptive, it is necessary to assess, from the point of view of the relevant consumer, if there is a sufficient and specific relationship between the mark and the goods or services at issue.

In relation to the word "BLUE", the Court noted that the relevant public is the general public in the English-speaking territory of the EU, as the sign is an English word. For this reason, the Court stated that there is no doubt that the mark would be immediately understood as referring to the colour blue.

The Court also noted that it is common knowledge that manufacturers distinguish their beverages on the basis of their colour. Consequently, the colour may reasonably be perceived as a significant characteristic of the goods in question and for this reason be important in the consumer choice. For this reasons, the Court held that the mark "BLUE" was descriptive as the colour blue refers to the visual aspect of the goods in class 32.

The Court also clarified that the figurative elements of the sign were not complex enough to distract the relevant public from the descriptive message conveyed by the word element "BLUE".

In conclusion, a mark is considered descriptive when the relevant public is capable of perceiving the sign as designating the characteristics of the goods or services protected under the mark. Furthermore, figurative marks can also be considered descriptive if the graphic representation is not elaborate enough to distract the consumers from the descriptive message conveyed by the mark.

Case Ref: T-375/17

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