CJEU denies marketer’s bid to register ‘achtung!’ at EUIPO
In a victory for the European Union Intellectual Property Office (EUIPO), the Court of Justice for the European Union (CJEU) has upheld its refusal to trademark ‘achtung!’.
The court’s ruling, handed down yesterday, September 3, dismissed the appeal of a German communications agency, achtung!, against a decision that held that the disputed mark, which translates as “attention” in German, lacked sufficient distinctive character.
In January 2017, the EUIPO refused to register the mark, which the agency had applied for to use across its branding. The agency appealed against the examiner's decision in March 2017 but it was dismissed by the EUIPO’s board of appeal.
The board held that the mark did not “contain any figurative element enabling the consumer to memorise it easily and immediately and to perceive it as an indication of a specific commercial origin”.
In December 2017, the agency requested the annulment of this decision, which was dismissed by the EU’s General Court on the basis that achtung! had not established the distinctive character of the mark.
The court concluded that the applied-for mark “had no particular originality or significance” and that it would be immediately perceived by the relevant public as an ordinary advertising message, "without semantic depth".
On appeal, the agency claimed the General Court erred in law by limiting its examination to only one of the meanings of the sign ‘achtung!’, namely that of a “call or inscription to warn or raise awareness”, without taking into account the other meanings that this sign could have such as “esteem, appreciation or respect”.
It also argued that the court was wrong to consider, under appeal, that the lowercase letter 'a', with which the word 'achtung' begins, cannot, in itself, confer distinctive character.
The CJEU, however, agreed with the EUIPO and the General Court, holding that consumers “would not immediately perceive the term 'achtung!' as an indication of the commercial origin of a product or service, but as an eye-catching word intended to direct their attention to the so-called offers”.
It also upheld the General Court’s decision that the applied-for mark was likely to be used by any supplier to encourage the sale of any products or services, including those covered by the mark applied for, which would make it difficult for the consumer to identify the commercial origin of the goods and services.
Although the CJEU did accept the agency’s argument that term 'achtung' has other meanings in the German language, it agreed with the General Court’s conclusion that “the term 'achtung', in its possible and most likely use for the products and services in question, would be perceived exclusively as a laudatory advertising message”.
It also agreed that the lowercase letter 'a' cannot, in itself, confer a distinctive character to the sign because it is a common spelling error in the German language.
The CJEU concluded that the agency’s arguments were ineffective and ordered achtung! to pay EUIPO’s costs.
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