Nestlé’s battle against IMPOSSIBLE BURGER has faced another fail recently. As this blog informed last year, the District Court in The Hague imposed a ban on Nestle to use its brand INCREDIBLE BURGER finding it similar to the early registered EU mark IMPOSSIBLE BYRGER. This mark is used by the US company Impossible Foods for burgers made of meat substitutes.
As part of its defense strategy Nestle initiated an invalidation proceeding against the earlier mark before the EUIPO. According to the company, this mark is not distinctive for the relevant goods that it covers. For Nestle, this marks means a burger that one thought could not possibly exist. What’s more the sign can be perceived as a promotional, laudatory message.
The EUIPO disagreed and dismissed the invalidation in its entirety. According to the Office the phrase IMPOSSIBLE BURGER is not directly descriptive for burgers, on the contrary it posses some negative connotations. It is suggestive trademark and from this point of view can be protected.
The Office considered that Impossible would not related to an impossible product as a quality or other characteristics but as a qualifier of a specific noun. The consumers can perceive this phrase as an amusing catchwords or pun. Form that perspective the mark is not either a promotional or laudatory slogan.
This case is a good example for the so-called suggestive trademarks. They have a meaning but it can be found out by consumers only as a result of mental process, not directly. These trademarks can be registered although sometimes this can be tricky.
INTELLECTUAL PROPERTY PLANET 