Aldi mark CUCINA rejected: descriptive character

Aldi failed before the European Court (CFI) in the trademark registration of the Aldi trademark CUCINA, which is well-known in Germany. Aldi had unsuccessfully applied for trade mark protection for an EU figurative mark CUCINCA. The EU trade mark CUCINA is descriptive and was therefore refused.

In October 2019, Aldi applied for European trademark protection for its well-known CUCINA trade mark in Germany as an Union figurative trademark; however, the trade mark registration was refused because it was descriptive of the goods in the food sector for which trade mark protection was claimed. Moreover, not only a word or term can be descriptive, but also a figurative mark or a word and figurative mark, which is then referred to as an absolute ground for refusal pursuant to Art. 7(1)(c) of Regulation (EU) 2017/100. c of Regulation (EU) 2017/1001.

Descriptive mark – Infringement of Article 7(1)(c)

According to the EU Regulation (Article 7(2) (EU) 2017/1001) and general case law, a descriptive mark is excluded from trade mark protection already if it is understood in its descriptive meaning even in only one part of the Union. Therefore, the Board of Appeal can only refer to, for example, “the relevant public” of a single EU country when examining whether a mark is descriptive.

Accordingly, EUIPO (both the Office and the Board of Appeal) had refused registration of the EU figurative mark CUC’INA. The word ‘cucina’ was part of the basic vocabulary of the Italian language and, since the goods in respect of which registration was sought were foodstuffs, the target public would understand CUCINA as indicating that those goods were commonly used or prepared in the kitchen.

Furthermore, it is also a well-known fact that the German word ‘Küche’ not only indicates the room of a house but also means ‘type of food, of preparation’, in particular in the sense of French cuisine or bourgeois cuisine.

Aldi mark CUCINA

This was the starting point of Aldi’s appeal against this decision, which was decided today before the European Court of First Instance (CFI). Aldi argued that the Board of Appeal had made a contradictory assessment by finding that the word ‘cucina’ referred to the room of the house where cooking, baking or food preparation was usually carried out.

Since the goods in respect of which registration was sought were intended to be eaten, the sign applied for merely communicated that they were edible foodstuffs. It is therefore irrelevant whether the goods are normally prepared or consumed in the kitchen.

Above all, Aldi disputes that the EU figurative mark CUCINA has a descriptive meaning for consumers. On the contrary, the sign applied for is empty of content in relation to the goods applied for and is therefore not descriptive of their specific characteristics. The word “cucina” by itself does not mean anything for foodstuffs without further additions, which would require an addition such as “cucina italiana”.

Aldi mark CUCINA – rejected by CFI

CFI dismissed Aldi’s action. The Board of Appeal was right to assume that, from the point of view of the relevant public, the word element “cucina” refers directly to the room of the house where cooking, baking or otherwise preparing food usually takes place, namely a “kitchen”, the European Court ruled. Moreover, the figurative element also supported such an association, as the image corresponded to a cooking pot – which is, of course, an object for the kitchen.

Aldi had argued in vain that there were other possible associations for the figurative part of the CUCINA mark: a bonnet, a stylised crown, a puzzle piece or a weight for an old scale could be recognised in it, Aldi had argued. The CFI did not follow this. By its shape alone, the EU figurative mark CUCINA would be perceived as a cooking pot, the court ruled, and this would be reinforced by the word CUCINA.

For this reason, the CFI added to its judgment, the Aldi mark CUCINA was also devoid of distinctive character, because a sign which describes characteristics of goods within the meaning of Article 7(1)(c) of Regulation 2017/1001 is not distinctive. c of Regulation 2017/1001 is necessarily devoid of distinctive character for those goods within the meaning of Article 7(1)(b) of that regulation, the court explained.

Aldi’s action was dismissed in its entirety, and the Aldi mark CUCINA is not granted European trade mark protection.

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