General Court: 2GOOD for Class 30 goods is ordinary advertising slogan

European Union

In August Storck KG v Office for Harmonisation in the Internal Market (OHIM) (Case T-366/14, September 5 2015), the General Court has upheld the decision of the First Board of Appeal of OHIM concerning the word mark 2GOOD.

On November 1 2012 August Storck AG filed a Community trademark application for the registration of the word mark 2GOOD for "confectionary, chocolate, chocolate products, pastries, ice cream, preparation of the aforementioned products" in Class 30 of the Nice Classification.

The application was rejected on April 3 2013 on the ground that the number '2' made a reference to the word 'too' (meaning 'extremely') and thus put a very strong emphasis on the word 'good'. The mark as a whole would therefore be regarded as a laudatory promotional statement.

The First Board of Appeal of OHIM dismissed the appeal brought by August Storck KG, which then appealed to the General Court.

The General Court referred first to the requirement that all trademarks must have a distinctive character in order to be registered. A mark without a distinctive character is unable to perform the essential function of a trademark - namely, that of indicating the origin of the goods sold under that mark. Distinctive character is to be assessed with reference to two criteria: the goods or services in respect of which the registration is sought and the perception of the relevant public.

As far as the marks consisting of advertising slogans are concerned, the same criteria for distinctiveness apply as for other types of marks. Thus, if the relevant public perceives the mark as an indication of the origin of the products for which registration is sought, the mark must be regarded as having distinctive character. 

In the present case, however, the court drew attention to the fact that the relevant public is deemed to consist of average, English-speaking consumers, whose attention is somewhat reduced due to the nature of the goods involved (confectionary, chocolate and ice-cream). The number '2', combined with the word 'good', will be instantly and easily perceived by the relevant public as meaning 'too'. Any other combination, such as 'togood' or 'twogood', would not make any sense. The decision of the First Board of Appeal was therefore upheld by the court and the application for registration of the mark rejected.

The court concluded that the expression 'too good' was widely known and commonly used, and the mark simply lacked originality or salience. A relevant factor was the kind of goods for which registration was sought. All of the goods at issue related to taste and thus the relevant consumer would regard the mark as describing the gustatory qualities of the goods, and not in any way perceive the mark as indicating the commercial origin of the goods. The relevant public would simply regard the mark as a laudatory expression or an advertising slogan.

Lastly, in response to the applicant's reference to previous decisions taken in respect of identical or similar marks, the court stated that previous registrations may be a factor to be taken into consideration when deciding on a new application, but that any examination must be rigorous and full, and conducted on its own merits. The court deemed the examination of the Board of Appeal in the present case to be full, specific and correct.

The General Court dismissed the action and ordered August Storck to pay the costs.

Mette-Marie Henrichsen, Plesner, Copenhagen

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