Nina Jankowska: The trademark may not contain a marijuana symbol. Is it?

Ten post jest także dostępny w języku: polski

A trademark may not contain a marijuana symbol. This is what the EU Court ruled in its judgment of 12 December 2019. It was a trade mark, the first photo of which is later in the article. The application for this trademark was rejected by the European Union Intellectual Property Office (EUIPO), and the decision to reject it was subsequently upheld by the Boards of Appeal and the Court of the European Union, according to Nina Jankowska, advocate trainee, trademark and design department of the Patpol patent office.

The trademark and the committee’s subjective opinion

– In my opinion, after analyzing the above mentioned judgment, it is impossible not to refer to EUIPO practice. My observations show that the discussed judgment is an example of inconsistency of jurisprudence and proves the inconsistency of the EU law in the scope of examining the prerequisites of registration capacity of EU trademarks. The judgment unconsciously touches upon the problem of subjectivity of the assessment of absolute prerequisites of trademark registration, depending on the perception of the EUIPO expert examining the case. EUIPO as an authority should be characterized by a uniform view on specific issues and uniform jurisprudence – emphasizes Nina Jankowska.

In practice, however, this is not self-evident because the office is composed of experts from each Member State who, when carrying out a trademark examination, have their own understanding of the regulations and experience, according to which, even with due diligence, they subconsciously make certain assessments. Subjectivity in the trademark examination plays a significant role, since if one expert finds that there are grounds for refusal, another can submit the mark for publication. If there are expert comments, it is the applicant’s responsibility to prove that the mark meets the absolute criteria. In the example, such a mark will only be registered if the expert finds the applicant’s arguments convincing.

Trademark with marijuana symbol – example of registration

It is controversial that EUIPO allowed another trademark filed by the same applicant with the following representation to be registered:

There are many examples of registering EU trademarks with cannabis or marijuana. In Nina Jankowska’s opinion, the above proves the inconsistency and lack of uniformity of the European Union law and its application by European Union bodies, and the presented considerations lead to the conclusion that the existing shape of the European Union trademark institution is systemically inconsistent.

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