Nestle lost another battle against IMPOSSIBLE BURGER

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.

Source: Loretta Dashorst – Novagraaf за Lexology.

Beer, Burger and Barbecue – not the best combination for trademark protection

As a general rule of thumb, not every sign can be registered as a trademark. Trademark legislations around the world prohibit registration of descriptive and not distinctive signs. The reason for this is the fact that such signs cannot be perceived by consumers as a source of trade origin, that is to say that the product or services comes from a particular company.

One interesting case in that regard is from Hungary where a trademark application was filed for “BEER, BURGER, BARBECUE FESTIVAL” in Classes 32, 41 and 43.

The Hungarian Patent Office refused this application based on absolute grounds, descriptiveness and lack of distinctiveness. In the appeal the Court upheld this decision.

The Court stressed the well-known EU Court position that a combination of descriptive elements cannot make one sign distinctive as a whole.

The submitted evidence for acquires secondary distinctiveness was dismissed as irrelevant and not sufficient.

The case comes as a good example about the protection of such signs. By default this is not possible except in cases where distinctiveness is acquired through consistent and long term market use. This means that when you apply for such signs you need to be well prepared with evidence in advance in order to have chances for a successful registration.

Source:  Danubia Patent and Law Office LLC – Sándor Vida