RUDE HEALTH FOODS LIMITED V REAL FOODS PTY LTD – CASE R 871/2015-4
This case concerns the Board of Appeal holding that ‘CORN THINS’ is descriptive and therefore lacks distinctiveness.
Real Foods obtained an international registration designating the EU for the mark ‘CORN THINS’ for ‘crispbread slices predominantly of corn’ in class 30.
Two years after it was registered, Rude Heath Foods Limited filed an application for invalidation of the effects of the international registration designating the EU on the grounds that the mark was descriptive and non-distinctive in relation to the goods for which it was registered.
At first instance the Cancellation Division rejected Rude Health’s application for invalidation on the basis that in English, while the word CORN is descriptive for the registered goods, the word THINS is not and CORN THINS would be perceived by the consumers as a new and playful way to name a product.
Rude Health filed a notice of appeal against the Cancellation Divisions decision requesting the Board of Appeal to annul the contested decision.
The Board of Appeal allowed the appeal and found that ‘CORN THINS’ is descriptive and that it would immediately be clear to the relevant public that it is describing the goods (slices) as thin and made of corn. Furthermore, the Board of Appeal held as ‘CORN THINS’ was descriptive and lacked distinctive character. Throughout the proceedings, Real Foods did have the opportunity to show that ‘CORN THINS’ had become distinctive through use, but they did not focus their effort on this and provide sufficient evidence. The Board of Appeal held that ‘CORN THINS’ had not acquired distinctiveness through use because the mere fact that ‘CORN THINS’ has been used in the territory of the EU for a certain period of time is not sufficient to show that the target public for the goods would perceive it as an indication of commercial origin.
The international registration for ‘CORN THINS’ was invalidated for the EU.
Judgment Date: 17 MARCH 2016