Pure Draught

23 May 2019

Since last year, it is possible in the Benelux to file cancellation actions against (registered) trademarks. A huge extension of the possibilities of a trademark owner, this sometimes prevents court actions.

Like in the EU, you can file revocation actions and also invalidation actions on the basis of earlier trademarks. Moreover, you can also try to invalidate an earlier trademark on the basis of lack of distinctive character. Interesting, as in recent years the Benelux Office is more and more reluctant to accept device marks (in case of descriptive words with minimal graphical elements). This probably influences earlier decisions to accept a trademark.

And now we have the first Benelux Office’s decision in an invalidation action. The Office had to rule about the distinctive character of the logo PURE DRAUGHT (like the one above, but than with a black background). Heineken filed the invalidation action against Anheuser-Busch InBev (the holder of the trademark).

Heineken argued that the words PURE DRAUGHT lack any distinctive character. The graphic elements also are also completely non-distinctive). The respondent obviously does not agree with this.

The Benelux Office finds the word PURE descriptive. But the Benelux Office holds that DRAUGHT is not a common English word with the Dutch consumer. The consumer in the Benelux will therefore not immediately understand this word. Moreover, the graphic elements, and especially the U, are distinctive as well. So, the conclusion is that the trademark is distinctive. The invalidation action is therefore rejected. Heineken’s attempt to invalidate or weaken the mark (in case the Benelux Office had ruled that the words were descriptive but the graphic elements were not), failed. The question is for how long, because an appeal will probably follow.

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