The term Emmentaler cannot be protected as a trademark for cheese from Switzerland. This was decided by the Court of Justice of the European Union with a judgment on May 24, 2023 (Case T-2/21).
Under trademark law, geographical indications of origin can also be protected. However, the indication must not primarily have a descriptive character. This is an obstacle to trademark registration, according to the law firm MTR Legal Rechtsanwälte, which focuses its advice on IP law and thus also on trademark law.
The European Union Intellectual Property Office (EUIPO) saw such an obstacle to registration with a trademark application for Emmentaler cheese. An industry association from Switzerland wanted to register Emmentaler as a word mark for cheese from the Emmental in Switzerland. With trademark protection, it was intended that only cheese from Switzerland could be labeled as Emmentaler. Other manufacturers would then have been obliged to indicate the region of origin, e.g., Emmentaler from the Allgäu.
However, the EUIPO rejected the application. The Court of Justice of the European Union has now confirmed this decision. For the relevant German circles, Emmentaler describes a type of cheese and not the geographical origin of the cheese. The designation thus has a descriptive character in at least one member state of the European Union. This is sufficient to refuse registration as a trademark, according to the court. An obstacle to registration exists, so the term cannot be protected as a trademark.
The judgment does not mean that geographical indications cannot also enjoy trademark protection as a protected designation of origin or a protected geographical indication. This is particularly the case when the indications of origin evoke special associations with quality or taste for the consumer. For example, the Higher Regional Court of Hamburg decided that only Scottish whisky may carry the addition ‘Glen’, as this suggests that the whisky comes from Scotland. There are many other examples.
Therefore, it must always be weighed on a case-by-case basis whether trademark protection can also be applied for a designation of origin.
Im IP law Experienced attorneys advise at MTR Legal Rechtsanwälte on issues of trademark law.
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