No Bavarian Weed in EUIPO’s Joint
In a recent decision (judgment of 12.5.2021, ref. T-178/20), the General Court upheld the European Union Intellectual Property Office’s (EUIPO) rejection of the EU trademark application “Bavaria Weed” for being contrary to public policy (in contrast, the DPMA registered the mark). The trademark applicant, a producer of medical cannabis, had argued in the proceedings that the trademark was perceived in connection with the therapeutic use of cannabis, which is legal in some, particularly English-speaking, member states. Therefore, there was no infringement of public policy.
The General Court, on the other hand, assumed that a reasonable person with average knowledge would not understand the term “weed” as a reference to medical cannabis. Rather, the term – which is known to follow from English slang – is understood as a synonym for “pot” and describes a psychoactive substance for recreational use that is “used to achieve a feeling of intoxication, elation or delirium” and is precisely “not used to designate medicinal products or treatments based on cannabis.” “Weed” and the typical cannabis leaf also means marijuana as a narcotic, not CBD without psychotropic effects.
According to the General Court, a different result cannot be justified by the partial legalisation of (medical) cannabis in the EU area either, since practically all goods eligible for trademark protection are legal and this ground for refusal would otherwise be obsolete. According to the court, the fact that at least in some member states the consumption of cannabis is still prohibited and that the fundamental values of public order – namely the interests of public health and the fight against organised crime – are affected, also justifies a refusal.
In contrast to the term “cannabis”, which is not prohibited per se as a reference to a substance whose therapeutic effect is currently under discussion, the term “weed” is intended to promote, advertise, or at any rate trivialize illegal consumption – i.e. precisely not for therapeutic purposes – even in countries where cannabis is partially legal.
Practical tip:
The judgment of the General Court ranks alongside various comparable decisions of the EUIPO, in which trademark protection was also denied:
Even though the EUIPO has already approved over 100 trademark applications with the designation Cannabis (such as CannabisUnion, Cannabis Clinic, Planet Cannabis or Cannabis Bakehouse), applicants for trademarks with corresponding generic components should be aware of the risk of rejection. However, the present case shows that it may well make sense to apply for corresponding trademarks at the DPMA as well as at the EUIPO.
Contributing Advisors
