H2O is held to be generic for certain beverages

The Venezuelan Trademark Office has rejected the application to register the trademark H2O (Application 1999-8344) for goods in Class 32 of the Nice Classification, namely mineral water and non-alcoholic beverages (Resolution 550, November 20 2007). The resolution was published in the IP Gazette 491 of December 18 2007.

The office's decision was based on the finding that H2O is generic for goods in Class 32, since H2O is the chemical formula for water. The office stated that H2O is a common and usual denomination used by consumers to refer to beverages such as water, juices and sodas. Therefore, the registration of the trademark H2O for goods in Class 32 would give the applicant an unjust advantage over competitors which may wish to use the chemical formula H2O for water and water-based products.

This resolution sets the precedent that the chemical formula of a product cannot be distinctive for that product.

The decision of the office is perhaps open to debate. It is difficult to conceive that the average consumer calls water and water-based products by their chemical formula. Furthermore, the application covered not only water and water-based products, but also other beverages, including juices, sodas, fruit nectars and lemonades. Therefore, the applicant may have been successful had it removed water and water-based products from the application.

The question remains of whether the office should have refused to register the mark on the grounds that it is descriptive of water and non-alcoholic beverages, rather than on the grounds that it is generic.

Maria Ruse Ruggiero G, Estudio Antequera Parilli & Rodríguez, Caracas