Drink and drugs were the main preoccupation of some of Europe's finest legal brains this morning, when the Court of First Instance rendered its decision in Case T‑234/06, Giampietro Torresan v Office for Harmonisation in the Internal Market, Klosterbrauerei Weissenohe GmbH & Co. KG, a decision which some of the IPKat's readers may feel to have been reached while under the influence of one or other of those popular commodities.
Over ten years ago, in February 1999, Giampietro Torresan applied to register as a Community trade mark the word CANNABIS for (i) ‘Beers’ (Class 32); (ii) ‘Wine, spirits, liqueurs, sparkling beverages, sparkling wine, champagne’ (Class 33) and (iii) ‘Providing of food and drink, restaurants, self-service restaurants, public houses, ice cream parlours, pizzerias’ (Class 42). The mark was registered in April 2003. Two months later, Klosterbrauerei applied for a declaration that the mark was invalid as regards the alcoholic beverages in Classes 32 and 33. The Cancellation Division agreed, concluding that CANNABIS was descriptive of the goods in question. In 2005 the Board of Appeal dismissed the appeal: in its view (i) the word ‘cannabis’ designated, in everyday language, either a textile plant or a narcotic substance and (ii) 'cannabis' was, for the average consumer, a clear and direct indication of the characteristics of goods in Classes 32 and 33.
The Court of First Instance dismissed Mr Torresan's appeal.
* It noted that cannabis has three meanings: (i) a textile plant the market in which is regulated within the Community framework and the production of which is subject to very strict legislation as regards the content of tetrahydrocannabinol (THC), the active ingredient of cannabis; (ii) a narcotic which is prohibited in a great number of Member States; (iii) the possible therapeutic use of which is under review. Further, when referred to as ‘hemp’, cannabis is used in a non-psychotropic form in the food sector in oils, herbal teas, pasta, bakery and biscuits, alcoholic and non-alcoholic beverages etc.The IPKat is a little surprised by all of this. While he is not worldly-wise in the ways of cannabis, he has always enjoyed a good beer or three and greatly appreciates his wines and whiskies too. It would never have occurred to him that the presence of the word CANNABIS on the bottle indicated that its purchase and consumption would contain a promise of the sensation of taking cannabis, any more than it would occur to him that a bottle bearing the words BULLS' BLOOD would offer him the buzz of consuming that particular liquid.
* The Court then summarised the principles under which a sign is deemed descriptive, i.e. where there is a sufficiently direct and specific relationship between it and the goods in question to enable the public concerned immediately to perceive, without further thought, a description of one of the characteristics of the goods and services in question. The descriptiveness of a sign may be assessed only in relation to the relevant public’s understanding of that sign and in relation to the goods or services in question.
* The relevant public in this case consisted of the average consumer of that type of goods.
* The key question here is whether the average consumer, who is reasonably well informed and reasonably observant and circumspect, may think, merely on seeing a beverage which bears as a trade mark the word sign CANNABIS, and no other additional element, that the mark at issue constitutes a description of the characteristics of the goods in question.
* There is a material link between the sign CANNABIS and certain characteristics of the abovementioned goods. Cannabis is habitually used in the manufacture of numerous foodstuffs, including beer and certain beverages.
* When he sees an alcoholic beverage or a beer bearing the trade mark CANNABIS, the average Community consumer will immediately perceive, without further thought, a description of the characteristics of cannabis, it being one of the ingredients which may be used as a flavouring in its manufacture.
* As the Board of Appeal pointed out, ‘those who purchase a beer bearing the trade mark CANNABIS will very probably do so because they are convinced that it contains cannabis and are attracted by the possibility of obtaining from the beverage the same, or at the very least similar, sensations as they obtain from the consumption of cannabis in another form’. Thus the fact that cannabis is a components of the drink constitutes a characteristic which determines the decision the consumer makes when he effects his purchase and therefore constitutes a fundamental characteristic of the goods for which the mark was registered, which is taken into account when a choice is made by the target public.
Merpel says, I've occasionally heard people say they fancy a BLUE NUN ...
Why cats don't like cannabis here and here