Beer pong, negroni, wine and sex

The title sounds like a party that got out of hand.

But no, these are recent European trademark applications, two of which were refused by the European Union Intellectual Property Office (EUIPO). So no party after all, at least not for the applicants of the marks BIERPONG and SEKS & WINE.

According to the EUIPO, BIERPONG is a drinking game in the Netherlands and Germany (which is correct). The aim of the game is to throw a ping-pong ball into a glass. When applied for as a trademark for drinking glasses, the name lacks distinctive character because it merely describes the purpose or use of the products. It therefore cannot be registered as a trademark.

What about the mark WINE & SEX? The applicant filed this mark as a logo for services in classes 41 (entertainment) and 43 (hospitality). The words WINE and SEX are descriptive of the services in Classes 41 and 43. The only potentially distinctive graphic element is the typeface, which adds insufficient distinctive character. So, once again: no trade mark.

What has been accepted as a word mark is CECI N’EST PAS UN NEGRONI for alcoholic and non-alcoholic beverages. Apparently, the negation is sufficient for the mark to be considered distinctive. In our view, this is surprising, as it is questionable whether consumers would actually perceive such a negation as a trademark — especially given that the trademark owner (unsurprisingly) appears to be using it for an alternative to a Negroni.

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.