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OHIM Boards of Appeal: a descriptive collective trademark

In 2007, Demeter Association Inc. applied for the registration of the Community Trademark BIODYNAMIC in the classes 1, 29, 30, 31, 32, 33 for “products meeting organic and as well as certain ecological, farm diversity and other standards and guidelines“.

The trade mark was considered not eligible for registration in respect to the goods applied for.

The examiner considered that the expression ‘BIODYNAMIC’ taken as a whole immediately informs consumers without further reflection that it is an indication of the farming method used in the production of the goods in question. Therefore, this expression contains obvious and direct information on the quality of the claimed goods.

The Applicant had argued that i) ‘BIODYNAMIC’ is a new word, which has not become customary in the current language. Unlike ‘organic’ or ‘biological’, the word ‘BIODYNAMIC’ is a new word creation, created by a group of farmers for the purpose of maintaining production standards used both in farming and processing food stuff according to a series of lectures on agriculture given by Rudolf Steiner.

ii) ‘BIODYNAMIC’ is not mentioned in the Macmillan English Dictionary and other dictionaries for advanced learners, iii) ‘BIODYNAMIC’ does not belong to the vocabulary of the English nor any other languages of a member state of the European Union iv)‘BIODYNAMIC’-trademarks are registered all over the world.

The decision was appealed.

On 15 February 2011 (R-675/2010-2), the Board concluded the sign BIODYNAMIC was descriptive for the goods at issue and that for this reason it could not be registered.

In fact, also collective Community Trademarks have to comply with Article 7 CTMR, with the only exception of signs or indications which may serve, in trade, to designate the geographical origin of the goods or services, but this is not the case: the “biodynamic” agriculture is a specific type of agriculture which a consciously approach to farming and gardening and aim to sustainability.

All of the goods applied for were products meeting organic, ecological, farm diversity and other standards.

A search in the Internet showed that the term “biodynamic” is commonly used, and that in the field of the interested goods, it is commonly used to refer to a type of agricultural products.

The Board judged that BIODYNAMIC simply and quite directly indicates that the applicant sells goods which are produced by a specific method of agriculture commonly referred to as BIODYNAMIC.

The word does not diverge from English word composition rules, without any unusual juxtapositions or lexical inventions and with no difference between the term as a whole and the sum of its parts.

Both the specialised public or the general public with a higher level of attention would not perceive BIODYNAMIC as indicating the origin of the goods, but as an indication of their characteristics.

Posted by: Benedetta Cordovado @ 22.24
Tags: OHIM Boards of Appeal, collective trademarks, absolute grounds of refusal, descriptiveness,
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