Hungarian woman feeling blue after EU General Court decision

The EU General Court has today rejected a Hungarian woman’s appeal after the European Union Intellectual Property Office (EUIPO) dismissed a trademark application for soft drinks.

In March 2016, Klaudia Fenyves filed an application at the EUIPO for an EU trademark consisting of the figurative sign ‘Blue’. The applied-for mark was in a blue font with a white background.

Fenyves sought registration in classes 32, 35 and 41 for the trademark covering soft drinks and non-alcoholic beverages; advertising; and entertainment services such as shows and music concerts.

The examiner rejected the application in September 2016 for lack of distinctive character.

Fenyves appealed against the decision in October 2016. The same year, the scope of the list of goods under class 32 for the application was restricted to soft drinks and non-alcoholic beverages with the exception of energy drinks and isotonic sports drinks.

The Fifth Board of Appeal of the EUIPO dismissed the appeal in March 2017 on the grounds that the mark would lead the consumer into believing that the goods in question are blue, and that the mark was inherently devoid of any distinctive character.

The board took the view that the figurative elements of the mark were “banal and commonplace” and that they did not divert the consumer’s attention away from the descriptive meaning of the mark. Furthermore, the board said that the sign does not indicate the commercial origin of the goods.

Fenyves argued before the General Court that the board was wrong to claim the word element of the mark was descriptive. She also claimed that the blue colour and white contour, typeface and diagonal position of the letters were not banal and commonplace.

The General Court said that the understanding of whether a sign is descriptive may be assessed by the general public’s understanding of the mark.

Fenyves argued that the board was wrong to say that the relevant public would immediately associate the word sign ‘blue’ with the colour blue. The General Court dismissed this argument.

The General court said that the applied-for mark has no element that is visually eye-catching or likely to be remembered by the relevant public.

“As rightly pointed out by the Board of Appeal, the figurative elements do not divert the consumer’s attention from the descriptive element of the mark applied for, but on the contrary, amplify that descriptive character by using the colour blue,” it said.

Therefore, it agreed that the applied-for mark lacked distinctive character.

The appeal was dismissed and Fenyves was ordered to pay the costs.

Did you enjoy reading this story?  Sign up to our free daily newsletters and get stories like this sent straight to your inbox.

Today's top stories

TM shape restrictions do not include Louboutin red sole: CJEU

L’Oréal hair treatment infringes Olaplex patent, says court

Snap Inc and Facebook move to dismiss Blackberry patent claims