YUMMY OR DANGEROUS? PEANUT EXTASY

YUMMY OR DANGEROUS? PEANUT EXTASY

Peanuts… Yummy! But what if the product designation does not just say „PEANUTS“, but „PEANUT EXTASY“? My first thought as a consumer would still be „Yummy“ expecting that the product contains a high percentage of peanuts and that it, therefore, tastes very „peanutty“ and that it can take you to a state of ecstasy when eating it. The European Union Intellectual Property Office (EUIPO) saw this differently and rejected an EU trademark application for the term „PEANUT EXTASY“.

BACKGROUND

On 24 September 2021, EU Trademark Application No. 018565187 for the word mark „PEANUT EXTASY“ was filed with the EUIPO for different foodstuff and confectionary in Classes 29 and 30. The EUIPO rejected the application saying it was not eligible for registration pursuant to Article 7(1)(f) and 7(2) EUTMR. It argued that part of the relevant public, namely, the French-speaking public, would understand the word „EXTASY“ as a reference to the illicit drug EXTASY and that the application was therefore contrary to accepted principles of morality and could not be registered as a trademark.

DECISION OF THE BOARD OF APPEAL

In its decision of 11 November 2022, the Fourth Board of Appeal of the EUIPO confirmed the examiner’s decision (R 1005/2022-4). It stated that the fight against drugs was a very important objective of the European Union and its member states and that “the Office should not assist positively those who wish to promote their commercial objectives by means of trade marks which are insulting certain fundamental values of a civilised society.” It held that a significant part of the French-speaking general public in the EU will easily understand the word “EXTASY” and make an immediate direct reference to a hard drug. The mark “PEANUT EXTASY” would be perceived by “a reasonable consumer with an average threshold of sensitivity and tolerance” as a message promoting the use of illicit drugs for recreational purposes. As this was contrary to accepted principles of morality, the application could not get registered as a trademark.

The applicant argued that the term “EXTASY” has more than just one meaning and that one of these other meanings was a reference to a state of ecstasy with enthusiasm and happiness and that this other meaning would be the first to come to a consumer’s mind when seeing “PEANUT EXTASY” – not any meaning related to drugs. Without discussing this argument in detail, the Board of Appeal did not consider that the meaning of “extasy” as an illicit drug might not be the first and foremost meaning coming to a French-speaking consumer’s mind when reading the words “PEANUT EXTASY” on foodstuff. Instead, it concluded that the term ‘EXTASY’ was understood by the relevant public as an indication of a type of hard drug and that this fact alone was sufficient to find an absolute ground for refusal.

CONCLUSION

I am definitely with the applicant: The consumption patterns of ecstasy and chocolate bars vary significantly. And I will definitely not fall for the illicit drug just because of seeing the word on foodstuff and confectionary. It sometimes feels like the “well informed, reasonably observant and circumspect average consumer” is not considered well informed, reasonably observant, or circumspect.

How do you feel about the decision? Would you be “shocked” by seeing the word “EXTASY” on a chocolate bar – like the EUIPO argues? Would a connection between a chocolate bar called “PEANUT EXTASY” and the illicit drug ECSTASY come to your mind at all when seeing the mark “PEANUT EXTASY”? Let us know what you think. We welcome your comments and remain at your disposal for further discussion of the issue by email at

or by phone at +49 89 55 87 98 70.