THE MARK AROMA IS DISTINCTIVE FOR ELECTRICAL COOKING UTENSILS
ECJ, Peter Chung-Yuan Chang / EUIPO, May 12th 2016, case T-749/14
International trademark designating the European Union for the word mark AROMA has been registered on 21 November 2006 for electrical cooking utensils in the classes 7 and 11.
A third party applied for a declaration of invalidity of the contested mark on the ground that it does not have any distinctive character under the Article 52-1 a) of Regulation No 207/2009.
In order to give its ruling, the ECJ relies on a previous judgment, which allege that ‘in order for a sign to be caught by the prohibition set out in Article 7(1)(c) of Regulation No 207/2009, there must be a sufficiently direct and specific relationship between the sign and the goods or services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods or services or one of their characteristics’ (ECJ – Grunding Multimedia / EUIPO (GentleCare), 21 january 2015, Case T-188/14, paragraph 19)
In consideration of the Article 7 and the previous case-law the Court decided that the mark AROMA had to be maintained for all the goods claimed on the ground that :
- The goods covered by the mark, namely kitchen utensils; do not have any particular aroma, with the result that the nature or essential characteristics of the goods at issue have no direct relationship with the sign AROMA (parapgraph 39) ;
- Even if an aroma can be released of an ingredient during its cooking or preparation using electric tools, it does not refer directly to these products without further thought. The function or destination the products in question is not to get kitchen utensils, drinks, or food with the flavor because it is rather a desirable feature of prepared or cooked food using said products (paragraph 40) ;
- The term AROMA is not descriptive of the way in which the goods at issue function, of their intended use or of any other of their characteristics (paragraph 42) ;
- The mark AROMA requires a certain degree of interpretation on the part of consumers, who will be unable to associate the mark directly with the goods at issue because, the intended use of the goods at issue is not to preserve or accentuate the taste of foodstuffs and beverages, but to prepare, cook, transform, process, heat, mix, blend, toast or roast foodstuffs and beverages (paragraph 62).
This decision sit the importance of the above case law Gentlecare and endorses the necessity of a direct link, concrete, and requiring little thought to the public involved when it comes it assessing the distinctive character of a brand.