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Better homes and gardens

October 2011 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

A trademark was so banal as to be unregistrable, according to the General Court.
It is a fundamental principle of trademark law that trademarks must be distinctive to be registrable. If the trademark lacks distinctiveness, it cannot be protected as a trademark. So an international real estate chain by the name of Better Homes and Gardens learned to its cost in this case.
In 2008, Better Homes and Gardens applied to have its name registered as a trademark. The trademark was registered for the classes “paper articles” and “business management assistance”. Both the OHIM and the OHIM Board of Appeal refused to register the trademark for “real estate business services” since it was not sufficiently distinctive for this type of services. In fact, the Board of Appeal held that, in the context of such services, Better Homes and Gardens was a banal, descriptive and laudatory message.
The real estate chain did not agree and went to the General Court, arguing that the trademark possessed a certain originality and was imaginative, too.
But the General Court did not agree with Better Homes and Gardens. The Court said that the deciding factor in whether a trademark is registrable is if the trademark is capable of distinguishing one organisation’s goods and services from those of other organisations. There being a potential for other real estate agents using the same expression as the trademark, the trademark was therefore not registrable.
Norrbom Vinding notes:
  • that the case shows that banal expressions and descriptions will most often not qualify for trademark protection and that this is particularly true when an expression or a description essentially refers directly to a particular group of goods or services.
The above does not constitute legal advice and should not be relied upon as such
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