As we all know, protecting generic names like Cosmopolitan for drinks is not possible according to trademark law. The question whether Cosmopolitan is a distinctive trademark for other products is a more interesting one. For magazines yes and for tobacco and cigarettes?
No, said the OHIM. Tobacco is mixed with a number of additives and one of them is flavour. As Cosmopolitan is a cocktail, and thus a taste, it may describe the taste of the tobacco. According to the OHIM Cosmopolitan is also used in the market as flavour indication.
The applicant appealed the decision however and the Board of Appeal finds the appeal well founded. The Board of Appeal is of the opinion that the link between tobacco and Cosmopolitan is a bridge too far. What would apply to a flavour like fruit or an aromatic flavor (mint) a cocktail is less obvious. Therefore, the description is not sufficiently direct. Moreover, the three examples given as evidence of the actual use in the market, is not proofing that Cosmopolitan is indeed a common flavor indication. So, at the end Cosmopolitan is a distinctive mark for tobacco.
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