Date: 12 June 2023
The plaintiff applied to WIPO for the word mark EMMENTALER for the goods "cheese with the protected designation of origin Emmentaler" as an international registration with designation of the EU. This was rejected by the EUIPO's auditor.
The appeal against the refusal was unsuccessful because the mark was descriptive.
The applicant brought an action against the decision of the Board of Appeal and sought annulment of the decision under appeal. The Court examined whether, by assuming that the mark was descriptive, the Board of Appeal infringed Art. 7(1)(c) of Regulation 2017/1001. In addition, the plaintiff argued that the name Emmentaler in a stand-alone position conferred protection as a collective mark under Art. 74(2) of Regulation 2017/1001 since it relates to the geographical origin of the goods concerned.
The action was dismissed by the court.
With regard to the descriptive nature of the mark, the court assumed that the relevant German public understood the sign Emmentaler directly as a designation for a type of cheese and not as a geographical origin. It is sufficient that there is a ground for refusal in only one Member State.
The exception provision of Art. 74(2) of Regulation 2017/1001 must be interpreted strictly. In particular, it may not extend to signs which are to be regarded as indicating the nature, quality, quantity, destination, value, time of manufacture or any other characteristic of the goods in question, but only to signs which are considered to indicate the geographical origin of those goods. The Board of Appeal came to the conclusion that the term "Emmentaler" describes a type of cheese for the relevant German public and is not perceived as an indication of geographical origin for the cheese in question. Accordingly, it cannot be argued that there is an exception under Art. 74(2) of Regulation 2017/1001.
The ruling makes it clear that Emmental cheese does not necessarily have to come from the Emmental in Switzerland. Producers from other EU Member States can therefore continue to produce the cheese. The Emmental Switzerland organisation intends to appeal the decision.