Nothing to (Bi)scoff at: CJEU rejects Lotus Bakeries colour mark

The CJEU recently issued a decision denying a trade mark application filed by Lotus Bakeries (most well-known as the makers of all things Biscoff) for the red-and-white colour combination commonly featured on their product packaging, for goods ranging from ice cream to their much-beloved biscuit spread. 

The application covered “Biscuits; cakes; confectionery; fondants (confectionery); gingerbread; pastry (industrial); speculoos (caramelized biscuits); spreads on the basis of biscuits, speculoos (caramelized biscuits), coffee and/or chocolate; waffles; ice cream; edible ice; chocolate; chocolate products” in Class 30. 

[Picture source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=297166&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1]

The CJEU essentially upheld the decision of the Board of Appeal (R 730/2023-1), but several points are worth highlighting: 

• Consumers would merely see the combination of red and white as decorative (or even descriptive as an indicator of flavour) when encountered in the context of confectionery products. 
• The combination of colours was held to be commonly used to market biscuits, chocolates and pastry due to their visual appeal. Therefore, the mark was not so uncommon or striking such that consumers would be able to perceive it as a trade mark for such goods. 
• There is a general interest in not unduly restricting the use of such colours by other traders for similar goods - to quote the BoA decision: “Red is a prominent choice in marketing due to its attention-grabbing nature, making it highly effective for catching the viewer's eye.” (paragraph 24)

This decision does not break new legal ground, but reiterates the high threshold of distinctiveness for colour trade marks, particularly in sectors where colours and colourful packaging are the norm for grabbing attention and inspiring purchases rather than functioning as trade marks. 

It is also a useful reminder that while the test for distinctiveness is always the same (i.e. whether consumers rely on the trade mark to distinguish goods/services of a particular commercial undertaking from those of others), it is usually much more difficult to fulfil for unconventional marks such as colours. 

The full CJEU decision can be viewed here.