Romanian FLAMMKUCHEN trademark application refused at registration

On 2 May 2018 Calin Gabriel Costea filed an application to register the Romanian word mark FLAMMKUCHEN (M 2018 02915). In July 2018 the Association pour le Developpement de la Flammekueche d’Alsace lodged observations and an opposition against the application before the Romanian State Office for Inventions and Trademarks (OSIM). The Alsatian association protects and promotes (among other things) the region’s traditional product flammkuchen (German), flammekueche (Alsatian dialect) or tarte flambée (French). This is a bread dough that is rolled out very thinly in the shape of a rectangle or oval and then covered with fromage blanc, creme fraiche, thinly sliced onions and lardons. It is one of the region’s most famous specialties.

Costea filed the application for goods and services in Classes 29 (“meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; oils and fats for food”) and 30 (“coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; edible ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice (frozen water)”) and services in Class 41 (“education; providing of training; entertainment; sporting and cultural activities”). In all three instances, protection was sought for the entire list of goods and services included in the class according to the Nice Classification.

The actions of Association pour le Developpement de la Flammekueche d’Alsace were mainly based on the EU collective trademark FLAMMEKUECHE D’ALSACE (011457777), which was registered on 28 December 2012 for goods in Class 30 (“sweet or savoury tarts being cooked, frozen, cooked under vacuum or cooked by gas”).

The applicant was neither a member of the Association pour le Developpement de la Flammekueche d’Alsace nor any other similar association. Moreover, he could not become a member of this association under the specific conditions of Article III(1) of the Regulation of Use of the EU Collective Trademark FLAMMEKUECHE D’ALSACE (011457777), particularly with regard to location, compliance and preservation of French traditions.

The filed observations were based on the following absolute grounds:

• The trademark application lacks any distinctive character.
• The application consists exclusively of signs or indications, which may serve in trade to designate especially the kind, quality, geographical origin or other characteristics of the goods or service.
• The application deceives the public, especially with regard to the geographical origin, quality and nature of the goods or services.

The opposition was based on the prior EU collective trademark and underlined the fact that the only word element of the Romanian trademark application – namely, FLAMMKUCHEN – corresponded to flammekueche, which makes the object of the collective mark, with the goods and services in Classes 29, 30 and 41 being either identical or similar, including by complementing those for which the collective trademark was protected, among other things.

Following the filed observations and opposition, the applicant failed to pay the examination fee for the Romanian trademark. Therefore, on 4 June 2019 OSIM refused in whole to register FLAMMKUCHEN.