Slogan “IN PURSUIT OF ANSWERS“ and others not registrable as trademarks according to EUIPO

Protecting slogans as trademarks is becoming more difficult. The European Union Intellectual Property Office’s (EUIPO’s) Board of Appeal (BoA) has dealt with the question of  registrability of slogans as trademarks in no less than three decisions recently. 

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The slogans concerned were:

-    “IN PURSUIT OF ANSWERS” (case R 2424/2022-4, decision of 8 August 2023)
goods/services: a.o. diagnostic test kits (class 10) and diagnostic and analytical testing services (class 42)
-    “VISION OF TOMORROW” (case R 1707/2022-4, decision of 8 August 2023)
goods/services: a.o. business consultation services in relation the optical sector (class 35)
-    “GUTER GESCHMACK GUTES GEWISSEN” (English: „good taste good conscience”) (case R 883/2023-1, decision of 14 August 2023)
goods/services: a.o. liver; charcuterie; sausages (class 29) and meat pies (class 30)

1.    EUIPO’s examination criteria

In all three cases, the EUIPO’s basically argued as follows: 
-    A trademark which is devoid of any distinctive character is not to be registered.
-    A trademark has distinctive character when it serves to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking and thus distinguishing the goods or services from those of other undertakings.
-    As regards signs which are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded per se.
-    It is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of signs.
-    A trademark is devoid of distinctive character if its semantic content indicates to the consumer a characteristic of the product or service relating to its market value which comes from promotional or advertising information which the relevant public will perceive first and foremost as such, rather than as an indication of origin.
-    The question whether a sign has distinctive character must be assesses by reference to the goods or services in question and the perception of the relevant public.

So far, so good. However, the EUIPO also claimed in the above cases:

-    A higher level of attention and knowledge of the relevant public does not necessarily imply that a sign is less subject to any absolute grounds for refusal. In fact, it can be quite the contrary since well-informed consumers do not see purely promotional indications as decisive.

So, the BoA on the one hand acknowledges that actually no stricter examination criteria should apply with respect to slogans. However,  the fact that the relevant public does not necessarily perceive each category in the same way and therefore, it may prove more difficult to establish distinctiveness for some categories of trademarks than for others…

… resulting de facto in: stricter criteria for slogan marks than for other categories of trademarks.

2.    The slogans at issue

Let us take a closer look at what the EUIPO’s BoA had to say to the three slogans at issue, all of which were  refused to be registered as trademarks with the argument of being non-distinctive:

1)    “GUTER GESCHMACK GUTES GEWISSEN” (English translation: “good taste good conscience”) 
goods/services: a.o. liver; charcuterie; sausages (class 29) and meat pies (class 30)
-    The sign lacks distinctiveness, even if it is a tautogram. The average consumer will not even notice that it is a tautogram, since there is no reason for a deeper analysis.
-    The goods are everyday goods which are bought quickly and without great attention. The level of attention will be low. 
-    The sign is a mere laudatory slogan indicating that the goods taste good and the consumer is allowed to have a good conscience when consuming them.

2)    “VISION OF TOMORROW” 
goods/services: a.o. business consultation services in relation the optical sector (class 35)
-    The sign lacks distinctiveness, even if it may contain different meanings, as “vision” may not only be understood as “perspective”, but (as the applicant explained) also as “power of imagination“ and as “ability to see”. The two latter definitions do not have a bearing on the distinctiveness of the sign, as the message remains purely promotional.
-    Regardless how the word “vision” is understood, the message remains that the services in question are related to the optical industry and that they are provided in such a way that they incorporate the most innovative methods and standards.

3)    “IN PURSUIT OF ANSWERS”
goods/services: a.o. diagnostic test kits (class 10) and diagnostic and analytical testing services (class 42)
-    The sign lacks distinctiveness, as it will be understood by the relevant public (whose attention will be above average) as “trying to achieve a solution to a problem”. The purpose of the goods/services at issue is to provide an answer/solution to a health-related problem or the diagnosis of a disease or condition. Hence, the addressed public will see a direct link to the contested goods/services.
-    The relevant public does not expect promotional signs to be precise or to fully describe the characteristics of the goods/services.

3.    LexDellmeier Comment

The slogan “GUTER GESCHMACK GUTES GEWISSEN” is – admittedly – descriptive for food products. The BoA consequently denied trademark protection. 

The two other cases are in our view open to discussion. 

In “VISION OF TOMORROW”, the EUIPO acknowledges that this sign may be understood in three (!) ways with completely different meanings. So, there could be three consumers understanding the sign in different ways. According to the BoA, This is still not sufficient for the required “minimum level of distinctiveness”. 

And honestly, the EUIPO takes the cake when translating “IN PURSUIT OF ANSWERS” into “trying to achieve a solution to a problem”. An answer is not always a solution to a problem. When for example a testing kit – let’s say a pregnancy test – is used by the consumer – and it tests positive, it only says “yes”. While “yes” may be an answer, it is far from being the “solution” to a “problem”… 

However, all this is of course a matter of finding and tailoring arguments. . From the perspective of a trademark lawyer, the only conclusion that can be drawn here is that EUIPO seems to become even  stricter (as it used to be already) when it comes to the question of registrability of slogan marks.

Protection of slogans as trademarks differ around the world. In case of questions to protection of trademarks and/or slogans in Germany or the EU, please feel free to contact us at: