The word mark AROMA had been registered as an EUTM in respect of various electrical cooking utensils including juicers, food processors, convection cooking ovens, bread makers, sandwich makers and hot plates. An application was filed to declare the mark invalid on the basis that AROMA was descriptive and non-distinctive of the goods covered.
Initially, the Cancellation Division rejected the declaration for invalidity. On appeal the Fourth Board of Appeal found that the word AROMA had the same meaning as, for example, smell or fragrance and that there therefore was a link between the goods covered by the registration and the mark such that the registration was descriptive and therefore non-distinctive. The registered proprietor appealed to the General Court.
As a preliminary point, the Court found that the purpose of electric cooking utensils is to "prepare, cook, toast or roast food stuffs and beverages" and that these goods are aimed at the average consumer.
The trade mark owner disputed the finding of the Board of Appeal that AROMA meant smell or flavour. The General Court found however that the terms were synonymous even if aromas were a sub-set of smells given that they had a positive connotation.
The trade mark owner stated that the Board of Appeal had carried out a complex test which an average consumer would not and it had given an indirect meaning to AROMA. Contrary to the Board of Appeal, the trade mark owner stated that AROMA does not refer to the cooking utensils but to the food cooked in them and therefore AROMA cannot be a characteristic of or refer to an intended use of those goods.
The General Court agreed stating that cooking utensils do not give off a particular aroma and therefore the nature of those goods has no direct relationship with the word AROMA . Relying on its definition of electric cooking utensils, it found that the function or intended use of these goods is to cook, toast etc. not to give foodstuffs or beverages an aroma. This is a characteristic of food prepared with the help of the goods covered by the registration. In the light of this the mark was not descriptive demonstrating at most an indirect connection with electric cooking utensils.
The court drew a distinction with the earlier case GentleCare where GentleCare was found to be descriptive of machines whose primary function was to treat fabrics as it would be expected that fabrics would be the subject of particular care requiring a degree of gentleness. The Court followed the FUN case where FUN was not descriptive of motor vehicles. It found that the sign FUN in respect of motor vehicles could give those goods a positive image but did not go beyond suggestion and was too vague to confer descriptive character, The same principles applied to AROMA.
Having found that the mark was not descriptive, the Court went on to find that AROMA is not commonly used in the world of electric cooking utensils. It held that the mere fact that AROMA may be seen as promotional and laudatory did not mean the mark was not distinctive. It concluded that the mark could even be regarded as having a certain degree of originality since the term AROMA was not normally used in this way.
Accordingly, the declaration for invalidity failed and the registration remains on the register.
Case T-749/14
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