The CJEU recently upheld the rejection of August Storck’s EUTM application for 2GOOD, in Class 30 for confectionary. One might reasonably be more surprised by the involvement of so senior a court than the rejection of the application itself, but the decision serves as a useful reminder.

Storck appealed the initial refusal their 2GOOD trade mark application all the way up to the CJEU. At each stage, Storck were informed that the mark lacked distinctive character, since it would be taken by the relevant consumer to refer only to the quality of the goods i.e. that they were “too good”.

Upon appeal before the CJEU, the Applicant claimed that the General Court had erred in requiring a greater than minimal degree of distinctive character. This was evidenced by the Court referring to attributes such as “originality” or “salience”, having a “number of meanings” or being “imaginative, surprising or unexpected”. These requirements, the Applicant opines, do not fit the requirement under Art 7 (1) (b) of EU Regulation 207/2009, of only a minimal level of distinctive character.

The CJEU rejected these arguments swiftly; in summary, the only logical interpretation of the mark is that the relevant goods are “too good”. A consumer will not interpret the mark as meaning “to good” or, literally, “2 good”/ “two good”.  Accordingly, there is a single meaning and this meaning is immediately apparent to the consumer.

The take home reminder, then: appealing a decision, based on a mistake relating to a point of law, must have greater support than the Applicant simply disagreeing with the court’s interpretation of the facts of the case. The case also serves as a useful reminder that whilst the artistic merit of a brand name is not the definitive test for whether it can signify a single trade origin, brands with a higher level of originality and creativity (e.g. Kodak) are more likely to pass through to registration.