Every slogan is not a trademark

To be eligible as a trademark, a slogan, as any other sign, shall bear a distinctive character, meaning it shall serve as an indication of origin for the covered products and services and not be limited to a promotional function.

The European Union court had to hear of an appeal formed by an applicant against a decision of the European Union Intellectual Property Office (EUIPO) in which the Office dismissed his registration request. In this context, the European Union court had to appraise the distinctiveness of the slogan "Take your time pay after", which was applied for as trademark under a figurative form.

The trademark registration request had been dismissed by the EUIPO pursuant to article 7 § 1 b) of regulation (EC) n° 207/2009 of 26 February 2009, which provides that "trademarks which are devoid of any distinctive character" shall not be registered.

In its decision of 26 September 2017, the European Union court notes that the Boards of appeal, in its decision of 4 August 2016, rightly considered that the trademark applied for would be perceived exclusively as promotional information underlying the positive characteristics of the provided services without providing any indication of their commercial origin.

The European Union court confirms the Boards of appeal analysis and states that the trademark applied for lacks distinctiveness considering its message is purely promotional and that its figurative elements are non-distinctive, which prevents the relevant consumer from identifying the commercial origin of the services at stake.

This decision underlines that the EUIPO appraisal of slogan distinctiveness is stricter than the one of the French trademark Office (INPI) or French courts. Applicants wiling to protect a slogan by trademark rights should bear this reality in mind while defining their filing strategy.

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