EU Court backs IP Office assertion that supplement trademark is “devoid of distinctive character”

By Will Chu

- Last updated on GMT

©iStock/Zerbor
©iStock/Zerbor
The European Union’s (EU) General Court has backed the European Union Intellectual Property Office’s (EUIPO) decision to reject the registration of a trademark supplement arguing that it was “devoid of distinctive character.”

In court documents​, the General Court upheld the EUIPO Board of Appeal’s decision last year concerning Biolatte Oy‘s “Biolatte,”​ trademark.

Judges ruled consumers could distinguish the terms “bio” ​and “latte”,​ perceiving the first as a “banal prefix” ​and the second as linked with the goods in question.

Consumers would immediately understand that sign as a reference to the content and the positive effect of those goods, the document added.

The Board of Appeal also noted in the contested decision, Biolatte Oy, a Finland-based probiotic company, claimed the sign had acquired market recognition within the EU market but could find no evidence submitted in support of this.

Further details of the application, grouped under Class 5 of the Nice Agreement concerning dietary, enzyme dietary and probiotic supplements, stated the goods marketed were dietary supplements composed of lactic acid.

Acido lattice

Biolatte
Biolatte Original, a Lactic acid bacteria probiotic preparation ©Biolatte Oy.

The Board concluded that the prefix, “bio”,​ when added to a term, “latte”, ​is immediately associated with the main ingredient of the goods, “acido lattice (lactic acid)”.

They said this did not enable the consumer to distinguish between the applicant’s dietary supplements and supplements, which have a different commercial or industrial origin.

The Board noted that under Article 7(1)(b) of Regulation 2017/1001, trademarks which are devoid of any distinctive character must not be registered.

“First of all, the relevant public will associate the terms “latte” and “acido lattice” because they share a lexical root,”​ the Court stated.

“Root is part of many words which designate products that contain milk or milk-based products.”

“Next, the relationship between the terms “latte” and “acido lattice” is not limited to the genealogy of the words, but indicates an organic relationship.

“Lactic acid is closely associated with milk. Lactic acid is obtained by transforming lactose, the latter being, for its part, a chemical substance found mainly in milk.

“In practice, lactose is transformed by bacteria into lactic acid, which can then be used to manufacture various types of products, such as different kinds of dietary supplements.”

Biolatte Oy dispute

The Court’s reasoning was disputed by Biolatte Oy, who said there could be no link made by the public, between milk products the goods covered by the mark applied for.

The firm pointed out that milk and dietary supplements could not be confused as milk was a foodstuff regularly consumed in households.

Biolatte Oy added that dietary supplements were consumed on a less frequent basis for offsetting a shortfall in one’s diet.

In summing up, the General Court dismissed the action and ordered Biolatte Oy to pay all court costs.

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