Volkswagen Denied its 'CHOICE' Trade Mark

In the midst of the Volkswagen emissions scandal, otherwise known as "diesel dupe", the German car manufacturer has had a run of negative results in its attempted trade marks registrations. Most recently, Volkswagen failed to register the 'CHOICE', which it has used to market its vehicle finance offering, as a Community Trade Mark in classes 12, 28, 35 and 37.

Terms/marks that are devoid of distinctive character will not be registered as trade marks. The General Court (European Union) found that to be the case here, as 'choice' can be used as an adjective or a noun and, further, that when used as an adjective the term could mean either 'top quality' or 'the act of choosing'. The case report can be found here.

Volkswagen's arguments against the above included, firstly, that the term would only be perceived by the relevant public as a noun and, secondly, that the Court's interpretation of the adjective 'choice' as above extended beyond its semantic meaning. However, the Court noted that Volkswagen did not provide sufficient evidence in support of the latter argument.

The result of the above was that the mark has a laudatory character and is not suitable as an indicator of commercial origin. This was the basis of two other recent decision in which Volkswagen failed to register 'EXTRA' and 'COMPETITION' as trade marks. However, the law on laudatory trade marks is not entirely clear. As we reported in July 2015 – 'HOT' Stuff Descriptive and Laudatory Trademarks v Fair Trade - it could be inferred from some cases that a mark may be registered if at least one of a term's meanings is not exclusively laudatory.