EGC: “CHOICE” cannot be registered as a Trademark

The European General Court (EGC) decided that the word mark “CHOICE” cannot be registered as a trademark because it is just a descriptive indication and therefore it is devoid of any distinctive character (Case T‑431/14, Judgment of 22 October 2015). Background of the Case and Subject Matter On 11 April 2013, Volkswagen AG filed an application for registration of a Community Trademark (CTM) at the Office for Harmonization in the Internal Market (OHIM). The mark in respect of which registration was sought is the word mark “CHOICE” (No.: 011769163) for – among others – cars. Decision of previous Instances In August 2013, the examiner of OHIM rejected the application for registration. The examiner stated that the term “CHOICE” could be understood as an adjective or as a noun. Referring to the online version of the Oxford dictionary, the term “CHOICE” as an adjective means “top quality” or “exquisite” and as a noun it stands for “the act of choosing” or “selection”. The meaning of the adjective “CHOICE” is just a purely descriptive indication. Therefore, the examiner came to the result that “CHOICE” is devoid of any distinctive character. Volkswagen appealed against the decision of OHIM. But, the Board of Appeal (BoA) followed OHIM’s line of arguments. Therefore, the applicant appealed further to the EGC. Decision of the EGC The EGC upheld the decision of the BoA. First, the court underpins the argumentation of the previous instances by determining that consumers could perceive the mark applied for as an adjective. Also, the court underlines that the applicant has not provided any evidence showing that the aforementioned meanings of the adjective “CHOICE” were wrong. Secondly, the court is of the opinion that also the noun “CHOICE” is only a descriptive indication of advertising and praise. Regarding this, the court pointed out that “CHOICE”, with the meaning “selection” carries the connotation of a particular quality which is the basis of every choice. Therefore, “CHOICE” is a laudatory term in everyday language and the relevant public just perceives it as an indication of high quality and a mere praise, but, not as an indicator of origin. Consequently, the word “CHOICE” as an adjective as well as a noun is devoid of any distinctive character.