"BioMarkt" is devoid of distinctive character according to the General Court

Under EU law, a trade mark may not be registered if there are absolute grounds for refusal. Accordingly, a sign may not be registered as a trade mark if it consists "exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of the rendering of the service, or other characteristics of the goods or service" (Article 7(1)(c) of the European Union Trade Mark Regulation [Regulation (EU) 2017/1001]). The European Intellectual Property Office (EUIPO) und subsequently the General Court therefore decided in the case of the "BioMarkt" Union trade mark application

_{Source: EUIPO database (EUTM 018309662)}

that the sign as a descriptive indication lacks the necessary distinctive character. The aim pursued by the European legislator in excluding descriptive signs or indications from registration as trade marks is to ensure that everyone can make use of these signs or indications, as this is in the general interest. The sign was refused registration as a trade mark for several Nice classes (classes 3, 5, 25, 29, 30-32, 35 and 43) and consequently for the following goods and services, among others:

• Several foodstuffs, such as fruit and vegetables, ready meals and herbs
• Clothing
• Organic cosmetics
• Non-alcoholic beverages
• Retail services related to clothing accessories, wholesale services related to food, etc.
• Catering services

The General Court stated that the word element "BioMarkt" is devoid of distinctive character as a consequence of its descriptiveness, ruling that "BioMarkt" is merely a "reference to a sales outlet, such as a supermarket or a specialist market for organic products, in particular foodstuffs, and to products produced using natural substances and organic production methods". Furthermore, the General Court took the view that this simple combination of two German terms does not amount to a "neologism" that acquires a distinctive character due to the unusual nature of the word combination. Because of the term's "banality and simplicity", the graphic is deemed to be unlikely to turn the attention of the relevant public away from the descriptive message and thus give the sign distinctive character.

In addition to the aforementioned goods and services, the trade mark application was filed, inter alia, for consulting and development relating to computer software as well as IT services (class 42). The EUIPO raised no objections to the application in class 42 – quite rightly so because of the obvious distinctive character for such services.

Among other things, this shows that merely adding common graphic design elements is insufficient to confer distinctive character on a descriptive word mark. In order for an application for a word and figurative mark to be successful, the graphics must also be distinctive, i.e. original or individual.