EUROPEAN UNION: Court Decides Figurative Mark ULTRA Has No Distinctive Character

The General Court of the European Union (GC) has issued a judgment in case no. T-170/23 regarding the lacking distinctiveness of the standalone term ULTRA.

On October 17, 2002, Anheuser-Busch LLC filed an application for the following figurative EU Trade Mark (contested trademark):

The contested trademark was registered on January 21, 2005, for beers in Class 32.

On June 24, 2020, the plaintiff, Amstel Brouwerij BV, filed a request for a declaration of invalidity of the contested trademark, which was based, among other things, on a lack of distinctive character pursuant to Article 7(1)(b) EUTMR.

On October 13, 2021, the Cancellation Division of the European Union Intellectual Property Office rejected the request. In a decision of January 24, 2023, the Board of Appeal (BoA) confirmed the Cancellation Division’s decision and held that GC case law had already established a clear difference between the meaning of the element ULTRA when used on its own and when used together with a further indication. It held that the term only referred to excellent or outstanding characteristics of goods or services when used as a prefix in conjunction with a descriptive noun, whereas the term “ultra” on its own had no meaning in relation to the goods concerned and was therefore distinctive.

The applicant appealed the BoA’s decision to the GC.

In a judgment dated June 12, 2024, the GC annulled the BoA’s decision.

The GC held that the term “ultra” lacked any distinctive character for beers as it is a synonym for “extra” which, as a standalone word or combined with other terms, is used in a generic way in trade for a wide range of goods, in particular for beers, and clearly and immediately informs the relevant public of the superior quality of the goods compared with others.

The term “ultra” is therefore a generic and laudatory term, which is incapable of differentiating the commercial origin of the goods it designates. The GC further held that the stylization of the figurative element ULTRA is simple and banal and does not divert consumers from the clear message conveyed by the word “ultra.” For these reasons, the contested trademark cannot be registered as a trademark according to Article 7(1)(b) EUTMR.

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