In the decision of June 18, 2019, the General Court of Justice of the European Union applied Article 7, paragraph 1, m) of Regulation No. 2017/1001, which prohibits the registration of trademarks that consist of “an earlier plant variety denomination registered in accordance with Union legislation” or “or reproduce in their essential elements, an earlier plant variety denomination”.
In this case, the German company Kordes filed an application for the European trademark “KORDES’ ROSE MONIQUE” in Class 31 for the following description of goods: “Roses and rose bushes as well as products facilitating the multiplication of roses”. However, the European Union Intellectual Property Office (EUIPO) refused the registration of the trademark in question because it is composed of the term “MONIQUE”, corresponding the variety denomination “MONIQUE” registered in the Dutch register of plant variety protection.
To do so, the EUIPO must rely on the fact that the plant variety denomination “MONIQUE” is reproduced in the same way in the trademark applied for, and also the fact that this term is an essential element of the trademark.
Kordes appealed to the General Court of the European Union to reverse the EUIPO’s decision. In this respect, the company argued that the term “MONIQUE” cannot be considered as an “essential element”. In addition, the company argued that the public would perceive the trademark as an indicator of roses of the “Monique” variety commercialized by the company Kordes.
The Court held that the distinctive and dominant element of the mark KORDES’ ROSE MONIQUE is the element “KORDES”, placed at the beginning, this word is the essential element and the indicator of the source of origin. Accordingly, the Court considered that the variety denomination “Monique” cannot constitute an “essential element” of the trademark.
Consequently, the Court reversed the decision of the EUIPO refusing the registration of the trade mark KORDES’ ROSE MONIQUE.
This decision highlights the conflicts that can arise between trademarks and plant varieties.
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