The case: The British company Nomad Foods Europe Ipco produces healthy ready meals, with ingredients consisting mainly of vegetables, nuts, pulses, soy, mushrooms, egg, whey, milk and sea and/or vegetable protein. The words GREEN CUISINE work well to convey the message that this company’s products are part of a healthy food brand.
Nomad therefore applied for the word mark
as a Union trademark. However, its application to register this sign failed, as the words ‘green cuisine’ merely described the products as being a healthy food. The words did not inform the public about the origin of the products as coming from a particular company, as per a trademark.
Therefore, Nomad made a second attempt for registration, with a specially designed picture sign indicating a brand of healthy food:
The new sign now not only had a green background, but its words ‘Green Cuisine’ were also executed in a fluent cursive script. It also comprised both upper- and lowercase letters in a random order: GReeN CuiSiNe. In addition, the initial element had a particularly striking design that incorporated a leaf and an arrow:
However, the EUIPO also objected to the figurative sign and refused to register it as a trademark.
Nomad appealed against the decision, arguing that the figurative sign was not limited to the mere message GREEN CUISINE. It contained many individual elements from which the consumer could glean the necessary indication of the origin of the products. As a fanciful sign, it could even indicate, in a specific way, that the meals originated from a particular business.
Were they right?
Trademark law protects competitors from the risk of monopolisation of signs consisting exclusively of descriptive indications. Trademarks must not have such a direct and concrete relationship to the goods or services that the target public can immediately and without further reflection recognise a description of the goods or services in question, or one of their characteristics. The only case where this might be different is where a sign has acquired a reputation as a trademark in and of itself.
Who was correct? Did the figurative sign contain too direct and concrete a reference to healthy food, as the lower court had assumed?
First, it should be noted that even with the figurative sign, the word elements remain clearly recognisable. GREEN CUISINE merely indicates vegetarian, healthy and/or organic cuisine, extending to meals that also possess those corresponding characteristics; it does not indicate the origin of these dishes as coming from a specific business establishment.
Nor does the way the words are put together distract consumers from this descriptive sense of the words. Rather, it corresponds to the structure of the English language.
Not even the stylisation of the word elements is enough to draw attention away from the descriptive understanding. The cursive script uses common advertising graphics. Furthermore, the random sequence of upper- and lowercase letters – GReeN CuiSiNe – does not obscure the recognisability of the words. The graphic would not, therefore, remain in the consumer’s memory as distinct from the words themselves. As such, this sign cannot indicate the origin of the products.
The green background even reinforces the message of the word elements, the colour green generally being a symbol for ‘vegetarian, healthy and/or organic’. Added to this, the leaf motif at the beginning of the sign simply symbolises by default the environmentally friendly aspect of the products, in that they have been created with ‘natural’ ingredients.
The fact that the leaf-and-arrow element is particularly stylised does not obscure its meaning: it is merely a reproduction of the ‘G’ in GREEN. Consumers, when they come across a sign with a figurative element, whose shape is loosely reminiscent of an alphabetical appearance, will try to identify these symbols, and they do so in such a way that the sign results in a word, or word combination, with meaning. Consumers will thus take from the leaf element only the initial letter of the word GREEN.
Thus, the figurative mark as a whole directly and specifically refers only to the healthy properties of the ready-made meals in question. In its very carefully reasoned decision, the EUIPO Board of Appeal thus logically confirmed the Examining Division’s rejection of the figurative mark,
EUIPO-BK of 28. 03. 2023, R 1897/2022-5.
Learnings. If you want to communicate a particular message of a product through a trademark, make sure that the sign does not have too direct and concrete a reference to the features of your products. As long as the graphic features still reveal corresponding words, such designs are not usually sufficient to make the sign distinctive as a trademark. The consumer will try to interpret figurative elements whose shape is loosely reminiscent of an alphabetical appearance as a word or part of a word.