EU General Court rules over Beyond Chocolate trade mark

On 12 June, in case T-343/23, the General Court of the European Union had to decide whether the sign 'Beyond Chocolate' meets the requirements of distinctiveness laid down in the EUTMR for its registration as a trade mark in the European Union.

In October 2021, a Germany-based company, Katjes Fassin GmbH & Co. KG, filed an application with the European Union Intellectual Property Office (EUIPO) for registration of the word mark 'Beyond Chocolate' as an EU trade mark (N. 018578274) for goods such as confectionery, sweets, chocolate and cocoa-based food products in Class 30 of the Nice Classification.

Both the first instance examiner and the EUIPO Board of Appeal rejected the application on the basis of Article 7(1)(b) of the EUTMR. They considered that the mark applied for lacks distinctiveness because it conveys an obvious meaning to the relevant public by promising something more than chocolate. In addition, due to its semantic content, which suggests a characteristic of the products related to their commercial value without being precise, it would be interpreted as promotional or advertising information rather than an indication of the commercial origin of the products. The German company appealed to the General Court of the European Union, which upheld the decision of the EUIPO to reject the registration of the mark "Beyond Chocolate" on the grounds that it was indeed devoid of any distinctive character.

The Court held that the expression 'Beyond Chocolate' was not unusual in terms of English grammatical, phonetic or semantic rules. It only conveyed a simple and clear message to the public, promising an experience beyond conventional chocolate. It therefore lacked the originality or uniqueness required to be distinctive in relation to the goods in question. 

Although the appellant claimed the existence of a practice of naming "evocative marks" which had developed in the field of vegetarian products, such as "next-level meat" or "impossible chicken" for meat substitutes, the General Court pointed out that in those cases the products, although similar to meat products, did not consist of meat. On the other hand, the words 'beyond chocolate', which have a direct and concrete relationship with the goods designated by the mark applied for, such as sweets, chocolates and cocoa-based goods, do not trigger any cognitive process on the part of the relevant public, which in this case was considered to be the general public, since the goods in question are intended to be consumed by a wide range of people.