EU trade mark dispute: VistaJet’s red stripe mark

On 5 February, in case T-195/24, the General Court of the European Union ruled on the distinctiveness of a trade mark consisting of a red horizontal stripe on a silver fuselage.

In 2022, the Maltese company VistaJet Ltd applied to the European Union Intellectual Property Office (EUIPO) for the registration of the EU position mark no. 018760795, which consists of a red horizontal stripe on a silver fuselage. The stripe runs from the nose to the tail of the airplane, crossing the centre of the fuselage above the wings. The fuselage has a gradient effect to simulate a reflective silver surface. The trade mark applied for covers goods in Class 39 of the Nice Classification, including air transport by private aeroplane, transport of passengers and goods and other services relating to the planning and organisation of air travel.

Both the examiner and the EUIPO Board of Appeal refused to register the mark on the basis that it lacked distinctive character under Article 7(1)(b) of the EUTMR. VistaJet appealed the decision to the General Court of the European Union, which had to determine whether or not the mark had sufficient distinctive character to be registered.

The General Court upheld the EUIPO decision. First, it considered the mark to be "excessively simple". In this case, the combination of a red stripe on a silver fuselage did not convey a conceptual representation that consumers could associate with a specific commercial identity. Furthermore, the Court noted that although the services were aimed at a segment of consumers with a high level of attention, such as the very rich members of the general public, this factor was not sufficient to change the assesment of the mark. Despite the consumer demographic, the nature of the sign remained a simple combination which did not attract the attention of the market as an indicator of the origin of the service. Lastly, the Court pointed out that the red line, as a basic geometric shape, was not capable of evoking a meaningful message that consumers would remember. Rather than being a commercial identifier of VistaJet's services, it was seen as a decorative element. As a result, the General Court rejected the appeal in its entirety and confirmed that the mark did not meet the requirements for distinctiveness.