Cigarette Manufacturer Trade Mark Appeal Goes Up in Smoke

The EU General Court has dismissed an appeal against the rejection of an application to register both the figurative mark and word mark "MARK1" (Marks) in classes 9 and 34 for cigarettes, cigars and related goods.

The General Court confirmed that the Marks were devoid of distinctive character within the meaning of Article 7(1)(b) of the EU Trade Mark Regulation (207/2009/EC).

Appeal Board

The Appeal Board observed that the word mark had a clear laudatory and promotional meaning for the goods concerned, suggesting to the relevant public the idea that the products in question were the "number one brand". The number '1' part of the word and figurative mark generally refers to something being the best or highest in the rank. Beyond this message, the public would not perceive any indication of commercial origin. The mark therefore consisted of an advertising slogan.

With regard to the figurative mark the Appeal Board held that it lacked the minimum degree of distinctive font and the difference in size between the work and the number were lacking in having any special character. The court held that the colour red can be interpreted to suggest that the product is a premium and/or the 'number 1' product. Therefore, the mark applied for was merely an advertising stunt and did not allow the originality or act as a badge of origin for the goods to be identified.

General Court

The Applicant appealed to the General Court on the basis that the marks are not descriptive.

The word 'mark' can be interpreted to mean: marking, scratching or even an abbreviation of Germany's former currency. The Applicant stressed that the mark applied for would not be suggestive to the fact that it is the best brand in the market. It maintained that the average consumer would not think so too. The applicant also confirmed that the average consumer knows that cigarettes of this brand are not, in fact, the number one brand on the market.

The General Court dismissed the appeal based on the fact that the mark can be seen to have many different interpretations by the general and relevant public. The Court confirmed that despite the applicant's assertions that the marks applied for were not a promotional or advertising campaign stunt, this was, in fact, the case.

The case, Case T‑32/15 Grand River Enterprises Deutschland GmbH v European Union Intellectual Property Office (EUIPO) can be accessed here.