EU Court of Justice Rejects Trademark Registration of Cheesemaker Group Emmentaler
The General Court of Justice of the European Union in the case of Emmentaler Switzerland vs. EUIPO has ruled against the Cheesemaker group Emmentaler and has refused to trademark the word ‘emmentaler.’
According to the Court, the ‘mark applied for is descriptive of a type of cheese for the relevant German public and is not perceived as an indication of the geographical origin of that cheese,’ therefore, the General Court concluded that it did not enjoy protection as a collective mark.
A collective mark is a specific type of trademark which indicates that the goods or services bearing the mark originate from members of a trade association, rather than just one trader.
The Swiss cheesemaking company Emmentaler Switzerland had obtained the international registration from the World Intellectual Property Organization (WIPO) of the word sign ‘EMMENTALER’ for goods that corresponded to the description of cheeses with the protected designation of origin ‘emmentaler’.
Emmentaler (or Emmental cheese) is a medium-hard cheese originating in the area around Emmental, Switzerland.
In light of that international trademark registration, the European Union Intellectual Property Office (EUIPO) was notified of the registration, however, the examiner rejected the application for EU trademark registration.
Aggrieved by the same, Emmentaler Switzerland proceeded to file an appeal, which was subsequently dismissed by the Second Board of Appeal of EUIPO, on the ground that the mark applied for was descriptive.
While noting the findings of the Second Board of Appeal of EUIPO,
The General Court said in order for the registration of a sign to be refused, it was sufficient that the sign had a descriptive character in part of the European Union, which may be a single member state, Germany in this instance.
According to the General Court, the Board of Appeal had an appropriate basis for concluding that the mark applied for has a descriptive character without it being necessary to analyze the elements of the mark that have no bearing on the perception of the relevant German public.
The Court while refusing the collective mark, elucidated that signs or indications which may serve, in trade, to designate the geographical origin of the goods or services in question may constitute EU collective marks.
However, that derogation must be interpreted strictly and, since the German public perceived the mark as a type of cheese as opposed to a geographical origin, it could not be designated with a collective mark, stated the Court.
Emmentaler Switzerland Director Urs Schluechter commented, “the Court has ruled on the protection of Emmentaler as a collective trademark in the EU. This decision is not yet final and has no bearing on the existing protection of Emmentaler in the countries with which Switzerland has concluded state treaties on the protection of indications of source. We will take our time to examine the decision and then decide whether or not to file an appeal against it with the ECJ.”