Stricter policy figurative marks OHIM- distinctive character logo

The law dictates that not any sign may be registered as a trademark. If a trademark purely describes the product it is applied for the authorities will refuse to register it. The word E-BIKE for electrical bicycles is refused for this reason. Often it is still possible to register the word when accompanied by a figurative element. Except not every logo is accepted. It used to be somewhat unclear what was and what was not acceptable. For this reason OHIM now has a new directive, which clearly illustrates that a stricter course will be followed than has been the case in the past.

As previously use of a common font (such as Helvetica) is not sufficient. The combination of a descriptive word and a simple graphic shape (a line or circle) is also insufficient. Now, however, deemed insufficient are as well: 1) a figurative element that is too small; 2) elements that are used a lot (such as in labels); or 3) if the image is a depiction of the goods and services. Especially this last point is a great concern, because it does not only apply to photographic images, but also to drawings and stylized images. The question whether the new policy to reject (highly) stylized pictograms is fair or not, is one to be answered by the European Court, for which we probably will have to wait several years. It may be the case, however, that national trademark authorities take a different route than OHIM.


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MENTOS has been selling chewing gum under the name MENTOS PURE FRESH for several years. In order to protect her rights MENTOS has registered the following trademarks: the logo MENTOS PURE FRESH, the logo MENTOS PURE FRESH 3 and a figurative depiction of the word PURE. Defendant sells chewing gum under the trademark DENTYNE PURE and has registered its logo as a trademark. Infringement or not?
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