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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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The General Court has held the (German language) word mark KLOSTERSTOFF covering various alcoholic and non-alcoholic beverages, is descriptive of alcoholic beverages under Article 7(1)(c) EUTM Regulation, as well as misleading for non-alcoholic beverages under Article 7(1)(g) EUTM Regulation.

Alpirsbacher Klosterbräu Glauner v EUIPO (T 844/16) of 26 October 2017, Case link here.

The court agreed with the EUIPO's Board of Appeal that the relevant German speaking public would interpret the terms 'kloster' and 'stoff' as descriptive of alcoholic goods, which were made in or stemming from a monastery. The composite trade mark KLOSTERSTOFF would immediately inform the relevant public of the nature and quality of the alcoholic goods.

The court based this interpretation on the Duden dictionary which, according to the court, is Germany's most important German dictionary. The term "Kloster" translates into monastery.  The term "stoff", so the court, was a colloquial term referring to alcohol.

The court explained that the Board of Appeal’s assessment was "not put in doubt by the fact that a number of dictionaries, internet sites and results from search engines referred to by the applicant do not make a link between "stoff" and alcohol"." Nor was it of any importance that that meaning was not very commonplace or familiar in German. According to case law, notably MÄNNERSPIELPLATZ (T‑372/16), a word sign may not be registered if at least one of its potential meanings refers to a characteristic of the goods or services in question at issue.

In this context, the General Court explained that the Board of Appeal "discussed the tradition dating back to the Middle Ages of producing beer and spirits in monasteries, taking the view that those factors establish, in the minds of the relevant public, a clear connection between the mark sought and the goods in question." The court therefore rejected the applicant's argument that the average consumer was unaware of the tradition.

Finally, the Court also confirmed the Board of Appeal's view that the composite mark was misleading for non-alcoholic beverages, Article 7(1)(g) EUTM Regulation: "if average consumers see the word sign Klosterstoff on packaging for the goods in question, being ‘non-alcoholic beverages, in particular non-alcoholic beer’, because of the presence of the word ‘stoff’ they will tend to think that they contain alcohol. It follows … that the mark sought is misleading because it conveys clear information to the effect that the goods in question referred to by that mark are alcoholic beverages, whereas ‘non-alcoholic beverages, in particular non-alcoholic beer’ do not contain alcohol."

Therefore, the General Court concluded that the sign KLOSTERSTOFF was not registrable as an EUTM.

Comment:  the General Court's decision seems logical in its application of the law. A word sign may not be registered if at least one of its potential meanings refers to a characteristic of the goods or services in question. However, as a native German speaker I would not have made the connection between the word "stoff" (which I would translate in its literal and obvious meaning "cloth", "material", "fabric" or as slang for hard drugs) and its Duden slang translation "alcohol". This despite being familiar with the tradition of monasteries being breweries.  If one word in a combined wordmark consists of a not very widely known slang word (which is referenced only in a few dictionaries), can a combined mark including this term still have a "potential meaning" in the sense of a "probable interpretation by the relevant consumers" -- given the extra mental step consumers would have to make when combining the terms in addition to deciphering the meaning of one of the elements?  

Feel free to comment below.

Posted by: Birgit Clark @ 13.01
Tags: descriptive, slang meaning, alcohol,
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Reader Comments: 4
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Submitted By: Richard Gallafent
01 November 2017 @ 11.11
Dictionaries can be rather misleading on occasion. We were recently confronted with a dictionary entry for a distinctive wordmark where the Dictionary publisher had simply failed to acknowledge the entry as a trademark, so the EUIPO examiner thought that what we were trying to register was a generic term. The description in the dictionary entry of the activity carried out under the mark was, unsurprisingly, totally accurate. The Publishers apologised, and that, plus a selection of attempts to find the term in any other dictionary in the relevant field, was sufficient to enable the EUIPO to move the mark forward to advertisement.
Submitted By: Luca Geoni
02 November 2017 @ 13.53
In my opinion a mark should be considered as descriptive only if the reference to the goods/service is immediate and doesn't require additional rasonings or knowledge that requires specific searches.
Submitted By: stefano Sandri
06 November 2017 @ 09.49
I agree. The cognitive evidence (CRAIK, F. L. M., Y LOCKHART, R. S. (1972): Levels of processing a framework for memory research, 1972) confirm that in the case there is not "intuitive" and direct recognition on side of the relevant consumer between 2klosre" and "stuff" and the alcoholic or non alcholic beverages.
Submitted By: roland wilding
10 November 2017 @ 13.36
I appreciate this decision. i have always directed seekers of new marks to latin or norsk dictionaries. maybe we should look at all dead language dictionaries. if you go for live dictionary words you have to face the consequences both marketing and legal.

MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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