To what extent plant variety denominations can be protected as a trademark in the EU? That’s the question that the General Court of the European Union ruled in case T‑569/18 W, Kordes’ Söhne Rosenschulen vEUIPO in 2019.

The case concerns an attempt for registration of a European trademark for ‘Kordes’ Rose Monique’ in class 31 – roses, rose plants and rose-propagating stock. The mark was refused by the EUIPO based on absolute grounds Article 7(1)(m), EUTMR:

The following shall not be registered:

(m) trademarks which consist of, or reproduce in their essential elements, an earlier plant variety denomination registered in accordance with Union legislation or national law, or international agreements to which the Union or the Member State concerned is a party, providing for protection of plant variety rights, and which are in respect of plant varieties of the same or closely related species.

In the appeal, however, the General Court annulled the EUIPO’s decision stating that ‘Kordes’ Rose Monique’ can be a valid trademark.

The reasons for this conclusion were that although plant variety denominations cannot be monopolized, this is true in situations where these denominations are the dominant and leading elements of the marks.

This is not the case for the above-mentioned mark where the dominant position was possessed by the producer’s name Kordes. The fact that there is an apostrophe means that the Rose Monique is offered by that company and these words are not leading or distinctive parts of the mark. The consumers will be able to understand the trade origin of the goods at hand.

Source: Louise van de Mortel, Novagraaf.