H2O+ not suitable as a trademark

The application for trademark registration of the sign ‘H2O+’ was refused by the EUIPO, as decided by the EU General Court on November 27, 2018. The EU General Court concluded that the sign applied for lacks distinctive character and is therefore not suitable as a trademark.

Trademark requirements

A sign, such as a brand name or logo, must fulfil certain criteria in order to be registrable as a trademark. In particular, it must have ‘distinctive’ character in order to enable the relevant public to distinguish the marked goods and services as belonging to a specific undertaking, as opposed to goods and services originating from other undertakings. If a mark does not fulfil these requirements a trademark application will be refused or, if a trademark right has been granted, the registration can be challenged and potentially revoked.

The requirement of distinctiveness is not met if the (dominant) element or elements of the sign for which protection is sought is non-distinctive or descriptive for the goods and services in question. Therefore, when assessing the distinctive character it is relevant for which goods and services the mark has been applied for.

Acquired distinctiveness

Practice shows that a non-distinctive sign can only obtain trademark protection when it has acquired distinctiveness. In other words, if the relevant public has started to recognise the trademark for certain goods or services as originating from a certain company, as a consequence of the trademark being intensively used and/or for an extensive amount of time.

Water+

The decision of the General Court EU of November 27, 2018 concerns the application for trademark registration from October 2016 of the US company H2O Plus LLC that was filed for the following device mark:

H2O Plus LLC requested, by means of a territorial extension of its international registration, protection in the European Union for goods in class 3 and 5: (among other things) cosmetics, sun creams and anti-acne care products.

The EUIPO’s examiner refused the application due to its non-distinctiveness. In appeal, the Board of Appeal of the same instance confirmed the examiner’s decision. H2O Plus LLC then appealed at the EU General Court, but with no success.

The EU General Court also considered the sign insufficiently distinctive for the relevant public (in this case the EU consumer of consumer products). With the Board of Appeal, the EU General Court is of the opinion that the relevant public perceives the relevant sign effortlessly as the chemical formula for water (H2O) combined with the mathematical sign '+'; two banal and everyday symbols, which are thus easily recognisable and therefore lack distinctive character.

The EU General Court stated that the horizontal representation of the Venus symbol is rejected, because the relevant public will not perceive this way: 'Even though the Venus sign is widely known and commonly used in astrology, astronomy and in some contexts of everyday life, the fact remains that, in the present case, that sign, reproduced horizontally and therefore displayed in a form which is unusual or even unknown by the relevant public, cannot primarily be perceived by the consumer as such, particularly when that symbol is part of the universally known formula of water, namely H2O.' In other words, with this judgment, the EU General Court upholds the refusal of the device mark H2O+ as a trademark, meaning that H2O Plus LLC remains unsuccessful in extending its international registration to the European Union.

Frouke Hekker works at Novagraaf’s Competence Centre. She is based in Amsterdam.