Dr. August Oetker Nahrungsmittel KG filed a CTM application for the words “La qualité est la meilleure des recettes” to cover goods in Class 29, 30 and 32.
The registration had been refused because of lack of distinctive character in respect to all the goods for which the registration was sought.
Dr. Oetker appealed the decision, but the Board observed that the relevant consumers, in this case, the French speaking consumers, would understand and perceive this grammatically correct sentence merely as a promotional statement about the positive qualities of the interested goods.
«Recettes» is a common word and describes the ingredients and the procedure to obtain a particular income; in a general way is synonymous of “method”.
Therefore, according to the Boards, “La qualité est la meilleure des recettes” communicates that the products at issue are produced with methods that guarantee a high quality.
The relevant public would perceive this statement as promotional, and not as a sing that indicate the origin of the goods, distinguishing them from the goods of another enterprise.
Once again, as already done in 2010 confirming the decision of refusal of registration of another slogan “Smart for Life Cookie Diet” (Case R 0211/2010-1), the Court of Appeal took the chance to give its interpretation of the judgment of the Court of Justice in the case C-398/08 (“Vorsprung durch technique”).
In that case, Audi had applied to register the word mark “Vorsprung durch technique” for a wide range of goods and services including ‘vehicles and apparatus for locomotion by land’ in Class 12. The Board of Appeal had refused registration on the basis that the mark lacked distinctive character for all goods and services except the goods in Class 12, as the mark had acquired distinctive character in respect of these goods. The General Court had dismissed Audi’s appeal. Audi had appealed to the European Court of Justice, which annulled the decision.
The ECJ noted that the public’s perception of different categories of marks was not necessarily the same, and that it could therefore be more difficult to establish distinctiveness in relation to marks of certain categories, such as advertising slogans. However, difficulties in establishing distinctiveness in relation to advertising slogans did not justify criteria stricter than those applicable to other types of mark.
The ECJ judged that the mark could be perceived by the relevant public both as an advertising slogan and as an indication of origin of the goods or services. The fact that the mark was primarily understood as an advertising slogan had no bearing on its distinctive character.
The Board of Appeal observes that “the Court’s statements in ‘Vorsprung durch Technik’ have not changed the criteria in relation to verbal expressions serving as promotional or advertising messages. Although that judgment indeed clarifies certain questions relating to the acceptability of trade marks, it cannot and should not be read as suggesting that any promotional phrase, however descriptive or banal, can now be registered as a trade mark, merely because it is presented in the form of an advertising message.“
In the case of Audi, the slogan was widely known because it had been used for many years for motor vehicles, and could be considered inherently distinctive in relation to the other goods and services not connected to motor vehicles.
In the case of “La qualité est la meilleure des recettes”, the slogan did not acquire distinctiveness trough use, and its general meaning in respect to the goods which it aimed to cover (food, non alcoholic beverages and already process foods and beverage) would have been perceived as a mere promotional statement, which does not indicate the origin of the goods.