One of the biggest pitfalls of new trademarks is the requirement that a trademark must meet a certain distinctiveness. The most common refusal is that a trademark is too descriptive: it informs the consumer in a too direct way about the origin, destination or qualities of a product. Some trademarks are not perceived as a trademark at all and are devoid of any distinctive character. This ground has recently been invoked by the EUIPO in respect of the trademark Cool shit. This trademark was filed by a shop in Barcelona for bags and clothing. These words are not perceived by the consumers as a trademark but as a common designation. The registration of this mark was therefore refused.
Although a trademark may be an existing word (think of Puma or Apple), this word cannot be a word that is usual or descriptive in respect of the goods or services. And we all know that sometimes, the line between distinctive and descriptive is rather thin. The main goal is, how original the better. So be different. This essence has been taken by heart by the company Ada cosmetic. But too literally, the trademark Be Different for cosmetics was also rejected by the EUIPO.
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