VOM URSPRUNG HER VOLLKOMMEN is descriptive for drinks

In RheinfelsQuellen H Hövelmann GmbH & Co KG v Office for Harmonization in the Internal Market (OHIM), the Court of First Instance (CFI) has held that the mark VOM URSPRUNG HER VOLLKOMMEN, which it translated as 'perfect from the point of origin', was descriptive in relation to beverages.

RheinfelsQuellen H Hövelmann GmbH & Co KG applied for the registration of the word mark VOM URSPRUNG HER VOLLKOMMEN for a broad list of drinks and beverages in Classes 32 and 33 of the Nice Classification. The examiner at OHIM rejected the application on the grounds that the mark was devoid of any distinctive character. The Second Board of Appeal of OHIM dismissed the appeal on the grounds that the mark was descriptive and thus fell within the scope of Article 7(1)(c) of the Community Trademark Regulation. RheinfelsQuellen appealed to the CFI.

First, the CFI found that as the application covered alcoholic and non-alcoholic drinks, the relevant public consisted of average German-speaking consumers, "reasonably well informed and reasonably observant and circumspect". Moreover, the CFI held that the mark at issue:

"expresses in a directly perceptible manner that the goods which it designates are perfect from the point of origin, that is to say, from the beginning, and that they are therefore unequalled, without blemish and not in need of any processing or any improvement."

RheinfelsQuellen claimed that the mark was made up of an unusual combination of words which could not be found using an internet search engine. The CFI countered that while no other traders used the slogan or a slogan made up of both the words 'ursprung' and 'vollkommen', other traders used one of these words in their slogans.

As regards RheinfelsQuellen's assertion that the mark had several meanings, the CFI noted that:

• the mark should be rejected even if only one possible meaning is descriptive; and
  
  
• RheinfelsQuellen itself used the words descriptively - namely, it used the phrase "wasser muss vom ursprung her vollkommen sein" (water must be perfect from the point of origin) on its website.

Finally, the CFI held that the mark clearly described a characteristic of the goods:

"The slogan clearly refers to the purity and perfection of the ingredients of the drinks and, in particular, to that of the water used. The purity and perfection of the ingredients are of particular significance for goods falling within Classes 32 and 33. With regard to mineral waters, the perfect state of the source water used is decisive in determining the quality of the drink, both as regards the taste and as regards health. So far as fruit juices, beers and other alcoholic drinks are concerned, the origin of their ingredients is also a factor of great significance in determining the quality of those products."

Having found that the mark was descriptive, the CFI stated that there was no need to examine whether the mark also was devoid of distinctive character. The appeal was thus dismissed.

This case shows that the distinctiveness threshold is still high: the conceptual content of a slogan may be held to be descriptive of the goods or services covered where it addresses a characteristic of the goods or services that is attractive from the consumer's point of view.

Peter Gustav Olson, Plesner, Copenhagen