The General Court of the European Union has ruled in case T‑253/20, Oatly AB v EUIPO. This blog has a previous post on this dispute for registration of a European trademark “IT’S LIKE MILK BUT MADE FOR HUMANS” in classes: 18, 25, 29, 30, 32.
The EUIPO refused to register this slogan based on absolute grounds – lack of distinctive character. According to the Office this was a laudatory promotional slogan that cannot serve as a source of trade origin. The first part IT’S LIKE MILK suggests that the product is a milk substitute whereas the second part BUT MADE FOR HUMANS that the product is for human consumption.
This decision was appealed by Oatly AB.
The General Court overturned the EUIPO’s conclusion stating it was wrong. The main argument was the fact that this slogan can have two meanings. The first one is what the Office came up with the product can be perceived as a milk substitute for human consumption. The second one, however, conveys the idea that milk itself is not suitable for human consumption.
As a result, consumers have to put additional efforts to discover this meaning. From that perspective the mark has the minimum degree of distinctive character required by EU trademark law , that is to say it can serve as a trademark.
As we mentioned in our last post on this topic, registration of suggestive marks can be quite a tricky process. Sometimes these marks can be accepted whereas on other refused.
That’s why it is crucial before filing an application, for the relevant applicant to determine what are the chances for successful registration of such marks and are there any hidden arguments that can help in necessary.