Descriptive character of a trademark
A trademark must be distinctive in order to fulfill its function as an indication of origin. This is not the case if a trademark is a common term for a product/service. Then the trademark has a descriptive character. It therefore does not fulfill its function and should not be granted trademark protection (absolute grounds for refusal). If such a trademark is already registered, an invalidity action can be submitted before the EUIPO in the case of an EUTM. That was the case here against the word mark ”Sütat“ for “dairy products” in class 29, which was applied for in 2006. The EUIPO rejected the invalidity action.
Relevant public
Whether a trademark is descriptive for the goods/services offered must be assessed according to the understanding that the relevant public. A EUTM can also be declared invalid where a ground for refusal exists in only one part of the EU i.e., where a relevant part of the relevant public considers the trademark to be descriptive. The Board of Appeal decided that this trademark is descriptive and therefore not distinctive in the eyes of the relevant Turkish-speaking public in the EU.
The turkish-speaking public
Even though Turkish is not an official language of the EU, according to the General Court, it is understood and spoken by a relevant part of consumers in the EU. This public understands ”süt“ and ”tat“ in the meaning of the flavour of milk. Thus, from the point of view of the relevant public, the trademark is descriptive, so that the General Court upheld the decision of the Board of Appeal.
To the point
In the case of the absolute ground “the descriptive character of a trademark“, it is sufficient that a not insignificant part of the relevant public considers the trademark to be descriptive. In this case, even if the Turkish language is not an official language of the EU, it is understood and spoken by a not insignificant proportion of consumers in the EU. It is therefore possible to base the assessment on the Turkish-speaking public.
