The US company Perfect Bar LLC filed the following European trademark application for class 05 – various nutritional foods such as energy bars and food supplements:
The EUIPO issued a refusal for this application based on absolute grounds – descriptiveness and lack of distinctiveness.
According to the law, every trademark has to be a distinctive sign in order to serve as a source of trade origin.
In the appeal the General Court upheld this decision. The words Perfect and Bar just refers to the product characteristics. The graphic representation is so simple that can be perceived by consumers only as a decoration and not as a distinctive element.
In such situations, there are two main ways low distinctive signs to get protection.
The first was when the relevant sign is combined with distinctive words or graphics. However, if these additional elements are not distinctive by themselves this will not help for the trademark registration.
Another way is when an acquired distinctiveness is proved. This requires a genuine market use of the sign for a period of time within which consumers are started to perceive the sign as a source of trade origin. This has to be proved at the moment when the sign is filed as a trademark.