Lidl's "Deluxe" mark held to lack distinctive character

On 17 December 2014, the General Court confirmed the decision of the Board of Appeal, finding that Lidl's Community trademark application for the "Deluxe" mark was devoid of any distinctive character.

On 14 December 2012, Lidl Stiftung & Co. KG filed a trademark application with the Office for Harmonization in the Internal Market (OHIM) for the following figurative mark:

The application was filed for various goods in Classes 5, 29, 30, 31, 32 and 33 (covering food and drink products). The mark has been featured by Lidl on a range of low-price, high-quality food products.

The trademark registration was refused by both the examiner and the Board of Appeal of OHIM due to its lack of distinctive character (pursuant to article 7 (1) b) of Regulation No 207/2009 on the Community trademark).

Lidl appealed to the General Court, which upheld the earlier decisions of OHIM and refused the trademark registration.

The General Court reiterated that the marks referred to in article 7 (1) b) of Regulation No 207/2009 are those which are not able to perform the essential function of trademarks, which is to identify the commercial origin of a good or service in order to enable the relevant public to repeat a purchase experience if positive, or avoid it if negative.

As regards marks composed of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, the General Court confirmed Lidl's position that registration of such marks is not excluded as such by virtue of such use. Indeed, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood as a promotional formula has no bearing on its distinctive character.

The General Court stated that the distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been applied for and, second, by reference to the relevant public's perception of the mark.

In assessing the present case, the General Court considered that the relevant public consists of average consumers who are reasonably well informed and reasonably observant and circumspect.

The disputed mark is a compound mark composed of the word sign "Deluxe" represented on a black rectangular background with a curved lower side. The General Court restated that the assessment of its distinctiveness cannot be limited to an evaluation of each of its words or components, considered in isolation, but must, on any view, be based on the overall perception of that mark by the relevant public.

Despite Lidl's assertion that the word "Deluxe" would be unusual and would not constitute a promotional slogan, the General Court found that the word sign "Deluxe" constitutes a common term clearly indicating a top-quality product. In the Court's opinion, that mark will be perceived immediately by the target public as simply a promotional formula or a slogan which indicates that the goods in question offer consumers an advantage in terms of quantity and/or quality as against competing goods.

As regards the graphical arrangement of the mark and its typography, the Court stated that they do not give the sign, as a whole, distinctive character.

The combination of the different elements does not enable the relevant public to identify the origin of the protected goods or to distinguish them from other undertakings and, hence, the mark is void of distinctive character.

Therefore, the General Court rejected Lidl's appeal and confirmed the refusal to register the figurative mark "Deluxe".