We reported previously, in Bulletin No. 2 /2016 (page 15), on a case of the registration of the graphic trademark (shown below, packaging for Knoppers waffles, without any additional markings, with protection only for the two-colored background) for goods from class 30 of the Nice Classification, namely confectionery products, chocolates, chocolate products, cakes, ice creams, and ingredients for manufacturing such products.
The EUIPO refused to register the designation as a trademark due to the absence of any distinctiveness in relation to the goods listed above. That decision was upheld by the EUIPO Board of Appeal, after which the company (August Storck KG) appealed to the General Court. In a ruling on 10 May 2016 (T-806/14), the court did not share the position of the company, but concurred with the view that the designation submitted is not distinctive. In the opinion of the court, given the relevant target group in this case, it should be assumed the designation will be perceived with only a low level of attention. The reason given for such a low level of perception was the low price of the products, which are purchased quickly, and the absence of any health warning that could cause consumers to pay greater attention when making a choice.
The designation submitted, then, was not sufficiently distinct from the form of other products available on the market. Nor did it contain any fanciful elements that could affect an assessment of its distinctiveness. The square form of the packaging, and the colors that the Company used, i.e., pale blue and white, did not result in the design having any distinctive features. Consequently, the court confirmed the position of the Board of Appeal, according to which the designation the company attempted to register did not possess distinctiveness in the meaning of Article 7 par. 1 pt. b of Regulation No. 207/2009, which sets out one of the absolute grounds for a refusal to register a trademark (“1. The following are not registered: …(b) trademarks that are devoid of any distinctive character”).
The applicant appealed against that ruling on 10 May 2016, and on 4 May 2017, the EU Court of Justice issued a ruling (C-417/16, August Storck v EUIPO) in which it shared the opinion of the General Court that the mark submitted is not distinctive. The Court of Justice stated that the color combination of white and blue often appears on the packaging of confectionery products, while the curved diagonal line running across the middle of the package, supposedly portraying a snow-covered mountain peak against a blue sky, was not obvious to consumers and did not render the mark distinctive. In the opinion of the Court of Justice, those simple graphic elements could also be perceived by consumers as merely decorative and not as an indication of the origin of the products.