[Guest post] Dutch IP battle about the hyped “Crompouce®”- a croissant-tompouce hybrid

The IPKat has received and is famished delighted to host the following guest contribution by Katfriends Robbert Sjoerdsma and Annelotte Boot (both Holla Legal & Tax) regarding a dispute concerning the … Crompouce®. Wondering what a crompouce is? Then read on!

Dutch IP battle about the hyped “Crompouce®”- a croissant-tompouce hybrid

by Robbert Sjoerdsma and Annelotte Boot

The whole Dutch IP community is in turmoil about the “Crompouce”, a croissant-tompouce hybrid.

The tompouce is an iconic Dutch rectangular pastry consisting of custard cream sandwiched between two sheets of puff pastry and topped with icing.

This month a hype emerged in the Netherlands – originally on TikTok – when the two sheets of puff pastry were replaced with the bottom and top half of a croissant and voila, the Crompouce was born!

Image by Robbert Sjoerdsma and Annelotte Boot

Following the hype, bakeries all across the Netherlands started selling this pastry under the sign Crompouce, which is a combination of the names croissant and tompouce.

It, however, appears that the sign Crompouce® was registered as a trademark with the Benelux Office for Intellectual Property (BOIP) already in 2020 and the design was registered as a Benelux design in the same year.

Image created by DALL·E 2

Dutch bakeries have since received cease and desist letters to stop selling the product (under the sign Crompouce®).

In the media, a discussion emerged among Dutch IP professionals about whether Crompouce® is a valid trademark?

Regarding the trademark, the combination of two descriptive elements typically results in a descriptive sign, unless an unusual variation is introduced (CJEU 12 February 2004, C-265/00, Biomild, EU:C:2004:87, § 39, 43). However, in this case, the argument can be made that the elements "cr" and "ompouce" or "cro" and "mpouce" are not inherently descriptive on their own, meaning that the principles formulated in the Biomild case do not apply.

The standard principle that abbreviations of descriptive terms become inherently descriptive when used as such, and the relevant public, acknowledges them as being identical to the full descriptive meaning, does not apply here either, at least not in our opinion. After all, a croissant is not usually abbreviated as “cr(o)”, nor is a tompouce abbreviated as “(o)mpouce”.

Another discussion that is currently taking place is whether the trademark Crompouce® has meanwhile become a generic term. Indeed, in mere days/weeks, Crompouce® apparently has become a common name in the trade for the relevant pasty. But is it possible for a trademark to degenerate in such a short period of time into a generic term?

Image created by DALL·E 2

A possible applicant for revocation will have the burden to proof that the term has become the common name in the trade as a result of either the action or inaction on the part of the proprietor (13/09/2013, T-320/10, Castel, EU:T:2013:424, § 28). Apparently, the hype emerged not on instigation of the trademark proprietor. In addition, shortly after the hype emerged, the trademark proprietor proactively addressed alleged infringements. As a result, we believe that the likelihood of the BOIP adjudicating in favor of the applicant for revocation on the ground of degeneration of the trademark into a generic term within such a brief timeframe is minimal, particularly considering the proactive measures undertaken by the trademark proprietor.

That said, should the possible applicant for revocation be able to successfully proof that as a result of either the action or inaction of the trademark proprietor Crompouce® has become a generic term, the trademark proprietor might face an uphill battle, as the distinctiveness of a trademark is more likely to degenerate when a sign is suggestive or apt in some way, especially if it carries positive associations that prompt others to see it as suitable not only for designating a specific producer's product or service but for a particular type of product or service ((30/01/2007, 1 020 C, Stimulation, § 22, 32 et seq.). In this regard, one might argue that the sign Crompouce® might indeed suggest the fusion of a croissant and a tompouce thereby reducing its distinctiveness.

We would love to read your thoughts about the above. Are we missing anything?

The validity of the design right(s) to the Crompouce® might be a topic for another post.