Nestlé TM application rejected for being a ‘promotional message’

Nestlé’s Community trademark application for the phrase ‘Nourishing personal health’ has fallen flat at the EU General Court after it was deemed a “promotional message” which lacks a distinctive character.

On Thursday, October 8, the court affirmed a judgment by the Office for Harmonization in the Internal Market (OHIM) that the mark was “banal” and would not indicate the origin of the applied-for service in the minds of the relevant public.

Nestlé applied for the trademark in 2011, citing health and food nutrition consultation services, diagnostic apparatuses and educational services.

The application was filed at the International Bureau of the World Intellectual Property Organization. Nestlé had designated the European Community as a jurisdiction in its application.

Nestlé had appealed against the OHIM Fourth Board of Appeal’s 2014 ruling to reject the application. Nestlé had argued that the phrase was distinctive due to the “incoherence of the mark”.

“One cannot nourish health”, Nestlé argued.

The court was not persuaded and agreed with OHIM that the phrase was merely promotional.

“The use of the verb ‘to nourish’ together with the expression ‘personal health’ is in no way incoherent or original given ... [that] the use of the verb reinforces the promotional message conveyed by the mark applied for.

“Consequently, the board of appeal was right to find that the mark applied for conveyed a simple, banal promotional message extolling the merits of the goods and services at issue and would not be perceived as an indication of the commercial origin of those goods and services,” the court concluded.