In a recent decision, the Brussels Court of Appeal considered whether the logo “GRATIS” could be registered as a trademark in the Benelux trademark register. The plaintiff, the Turkish company GRATIS IC VE DIS TICARET A.S., had attempted to register the “gratis” logo as a trademark for a wide range of goods and services, including cleaning products (class 3), pharmaceutical products (class 5), household goods (class 21), and clothing (class 25).
Court’s considerations
The Benelux Office for Intellectual Property (BOIP) refused this registration because the mark was considered purely descriptive (Art. 2.11(1)(b) BCIP) and lacked distinctiveness (Art. 2.11(1)(c) BCIP). According to the BOIP, the word “gratis” only refers to the free nature of a product or service and does not serve to indicate commercial origin.
The court assessed whether these grounds for refusal were correctly applied, basing its reasoning on established European case law. According to this case law, even a minimal degree of distinctiveness is sufficient to allow registration, but that does not mean that any sign can be registered. The Court of Appeal found that the word “gratis” simply means “free of charge” in French and Dutch and is commonly used in commerce as a promotional term. For the average consumer, this word thus refers solely to a characteristic of the goods or services and not to their commercial origin.
The court also looked at the graphical presentation of the mark. The mark was presented in purple, with the word “gratis” in block letters within a purple rectangle. The court ruled that these graphic elements were too banal and decorative and did not sufficiently contribute to distinctiveness. There was no imaginative or original combination of elements, so the graphic design was not distinctive on its own.
Finally, GRATIS argued that the mark should at least be registered for a limited number of goods and services, such as perfumes and cosmetics. That argument was also rejected. According to the court, the word “gratis” remains descriptive or non-distinctive even for these categories, as it merely indicates that the products are provided or offered free of charge.
Decision
The Court of Appeal therefore upheld the BOIP’s refusal. The ruling emphasizes that words purely descriptive in commerce do not receive trademark protection, even if simple graphic elements are added. Companies seeking trademark protection must ensure that they use distinctive and original signs.
Moreover, the judgment shows that narrowing the list of goods or services makes no difference if the applied-for mark is fundamentally non-distinctive. GRATIS’s claim was dismissed. This case highlights the importance of a careful trademark strategy and critically assessing a mark’s distinctiveness before applying.
Hereby the Dutch version.
