EU trade mark dispute: mark representing a leaf

On 12 February, the General Court of the European Union ruled in case T-434/23 related to an application for an EU figurative mark representing a leaf.

In 2017, Swedish company Essity Hygiene and Health AB, applied to the EUIPO for registration of an EU trade mark no. 016709305 consisting of a figurative sign representing a leaf. The application covered goods in Classes 16 and 21 of the Nice Classification. Class 16 included products such as paper, cardboard, paper towels, facial cleansing tissues, household paper and toilet paper. Class 21 included goods such as metal holders for towels, household utensils and containers, cookers (not of precious metal or coated) and paper dispensers.

At first instance, the examiner granted the application for the goods in Class 21, but refused it for the goods in Class 16. The EUIPO Board of Appeal later upheld this decision on the grounds that the trade mark applied for lacked distinctive character.

The Swedish company appealed to the General Court, which had to decide whether the mark lacked distinctive character, as the graphic element consisted of a very standard image of a leaf. 

The Court agreed with the EUIPO and concluded that the mark lacked distinctive character under Article 7(1)(b) of Regulation 2017/1001. It noted that the design would be perceived as a decorative feature, rather than an indicator of commercial origin, and therefore did not fulfil the essential function of a trade mark. In addition, the Court pointed out that the use of leaves as a symbol is widespread, particularly in the paper and board sector, which further reduces its distinctive character. The common representation of a leaf in similar products prevented the mark from standing out sufficiently to create an exclusive association with the applicant. As a result, the General Court rejected the appeal and confirmed that the mark did not meet the requirements for distinctiveness.