By decision of 8 May 2024 (T-320/23, only available
in Spanish), the General Court (GC) confirmed that the sign “NOT MILK”
is descriptive of the products in classes 29 and 32, and that the graphical
elements do not significantly alter its descriptive nature.

Background of the case

On 5 July 2021, the Chilean company The Not
Company SpA (the Applicant) filed the application for trade mark registration
018508169 with the European Union
Intellectual Property Office (EUIPO) for the figurative sign “NOT
MILK” for products in classes 29 (milk substitutes) and 32 (beverages
composed of a mixture of fruit and vegetable juices, vegetable juice beverages,
vegetable drinks).

By decision dated 18 October 2022, the Examiner
rejected the trade mark registration under
Article 7(1)(b) and (c) EUTMR as the requested trade mark was
deemed to be descriptive and lacked distinctiveness. The Examiner also noted
that the Applicant did not prove acquired distinctiveness through use as per
Article 7(3) EUTMR. The Applicant appealed.

The Board of Appeal of EUIPO (R 2233/2022) upheld the Examiner’s decision,
stating that the requested trade mark was descriptive for the specified
products and devoid of distinctiveness, especially considering the public would
understand “not milk” to mean that the products in classes 29 and 32
do not contain milk or dairy products.

The applicant appealed to the General Court of
the European Union (GC).

The decision

The Applicant’s arguments primarily focused on
contesting the descriptive nature of the trade mark and the importance of
graphical elements in altering its perceived meaning. The applicant argued that
the words “not milk” required cognitive effort by the public in its
understanding and could not be considered descriptive. The EUIPO replied that
the expression “not milk” has a straightforward meaning indicating
that the products in question do not contain milk or dairy products, making it
descriptive of the nature and type of those products. Furthermore, the graphic elements
of the proposed trademark did not change its descriptive message.

The GC upheld the rejection of the trade mark
application on the grounds of descriptiveness, since beverages intended for the
public are likely to contain milk or milk products, an indication perceived as
meaning that the products in question, which are such beverages, do not contain
milk or milk products, refers to an objective characteristic inherent in those

That said, the GC agreed with the EUIPO that
the message perceived by the public when reading the expression “not
milk” could be conveyed, in the same way, by another synonymous and
positively-turned expression, such as “milk free”, which would
indicate that the beverage in question is devoid of milk or dairy products.

The GC showed little sensitivity to the
stylization of the sign, noting that the stylization and colours of the trade mark
applied for are not likely to divert the attention of the relevant public from
the expression “not milk”, which is descriptive of the goods in question.

An Italian cat
reflecting on milk or not milk


Trade marks in the food industry, particularly
those focusing on vegan characteristics, play a complex and often contested
role. Given the increasing consumer demand for vegan and plant-based food
products, companies strive to find the right balance between describing their
products’ characteristics and maintaining distinctiveness of their trade marks.

Trade marks that merely describe the
characteristics of a product, such as its ingredients or nature, generally lack
distinctiveness and may not benefit of trade mark protection. Terms like “Vegan”,
“Plant-Based” or “Dairy-Free” are often used to describe food products that
align with a vegan lifestyle or dietary preference.

Descriptive terms may be eligible for trademark
protection if they acquire a secondary meaning, indicating a strong association
with a specific brand over time. This can occur through extensive use and
marketing, leading consumers to link the term with a specific product or

In the food sector, combining descriptive terms
with distinctive elements can help companies differentiate their products while
still communicating the vegan characteristics to consumers. This approach can
facilitate trade mark protection for specific designs or combinations while
retaining the descriptive elements needed to inform consumers.

Nevertheless, the matter still seems to be
evaluated on a case-by-case approach. We may recall word EU trade mark no.
1139253 “Beyond Meat” granted for products in class 29
(meat substitutes, vegetarian meat products, plant-based meat substitutes) and
the figurative EU trade mark no.
018568780 “Meat Zero” granted for products in
class 29 (formed textured vegetable protein for use as a meat substitute,
namely ground meat, sausage, bologna, burger meat, steak, nuggets, dim sum,
dumplings, ready-to-eat food, and ready-to-cook food). and more recently EUIPO
refused an application for registration of the image of an inverted cow for
products excluding the presence of meat, such as meat substitutes, protein for
the use in industrial manufacturing of food products and related engineering
services (see The IPkat


Photo by Umberto
Maria Galante


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