King Burger of Burger King

6 december 2017

We have the impression that EUIPO has become more and more critical when it comes to accepting trademarks. We have experienced this already with logos consisting of a descriptive words. And now, word combinations must be quite distinctive; the somewhat allusive combinations are rejected.

A recent example of a word combination that would previously have been accepted (in our opinion) is the KING BURGER trademark from Burger King. This company had filed the KING BURGER in the European Union for hamburgers and encountered a refusal of this trademark. The EUIPO is of the opinion that this trademark has an obvious promotional laudatory meaning.

Burger King appealed this decision and claimed that KING was referring to certain qualities, but is not descriptive. Moreover, everyone can understand that KING BURGER refers to the very distinctive BURGER KING. Finally, numerous brands with KING were accepted by the EUIPO, for example the trademark KING RIB.

The Boards of Appeal confirm, however, the decision of the examiner. It states that EUIPO is not bound to earlier decisions by examiners. Moreover, in respect of the Burger King argument, EUIPO states that: “As regards the applicant’s argument that the evidence of use provided shows that the applicant’s marks in the format ‘KING+ (descriptive element)’ can act as a badge of origin, it is noted that the applicant only indicated links to its websites as evidence of use. However, first, the content of the links may change over time. Second, in any case, the content of the links provided would at best show use of the said signs but do not prove the level of recognition by the relevant public. Third, it cannot even be ascertained that the alleged use shown in those websites, the link to which was provided for the first time before the Board, predates the filing of the contested mark.”