EU General Court rejects lactic acid supplement TM

The EU’s General Court has upheld the European Union Intellectual Property Office’s finding that a trademark for dietary supplements was descriptive of the relevant services to an Italian speaking public.

In the judgment, issued today, June 5, the General Court said that the EUIPO was correct to deny registration of a trademark for “Biolatte”, the application for which was made by Finnish company Biolatte Oy.

The 2016 trademark application covered dietary and probiotic supplements in class 5.

In 2017, the EUIPO rejected the mark, finding that it was devoid of distinctive character, a move which was upheld on appeal the following year.

According to the EUIPO, bio is merely a “banal prefix”, while for Italian-speaking consumers “latte” would be descriptive of the goods and services provided given that the primary ingredient in Biolatte’s supplements is lactic acid.

Biolatte then brought their case to the General Court, arguing that latte in Italian referred to milk and was therefore not descriptive of the goods and services covered by its application.

According to the General Court, however, the relevant public was likely to associate ‘latte’ and the Italian term for lactic acid (acido lattico) as they shared a common root.

This was particularly true given that lactic acid and milk were closely related in terms of their makeup, the court said.

“Lactic acid is obtained by transforming lactose, the latter being, for its part, a chemical substance found mainly in milk,” the judgment read.

As the court deemed the mark to be providing the relevant public with information regarding the content of the goods in question, it could not therefore be regarded as distinctive.

Biolatte had also argued that the sign was distinctive as the relevant public was likely to perceive it as being associated with the company’s founder, Yves Delatte.

The General Court was unconvinced, commenting that there was “nothing in the case to suggest that the person concerned is particularly well known within the European Union”.

Finally, the court found that Biolatte had failed to submit any evidence establishing that the mark enjoyed any recognition in Italy that would outweigh its lack of distinctiveness.

Biolatte was ordered to pay costs.

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