Judgments nº T-253/20 of Tribunal General de la Unión Europea, January 20, 2021

• Resolution Date: January 20, 2021
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-253/20

(EU trade mark - Application for the EU word mark IT’S LIKE MILK BUT MADE FOR HUMANS - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EU) 2017/1001) In Case T-253/20,

Oatly AB, established in Malmö (Sweden), represented by M. Johansson, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and V. Ruzek, acting as Agents,

defendant,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 7 February 2020 (Case R 2446/2019-5), regarding an application for registration of the word sign IT’S LIKE MILK BUT MADE FOR HUMANS as an EU trade mark,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and I. Nõmm (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 5 May 2020,

having regard to the response lodged at the Court Registry on 17 July 2020,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

Background to the dispute

1 On 14 March 2019, the applicant, Oatly AB, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

2 Registration as a mark was sought for the word sign IT’S LIKE MILK BUT MADE FOR HUMANS.

3 The goods in respect of which registration was sought are in Classes 18, 25, 29, 30 and 32 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. In response to a request to that effect on the part of EUIPO, the applicant, on 9 April 2019, amended the description of some of the goods in Classes 29 and 30 covered by the mark applied for.

4 On 9 April 2019, EUIPO raised objections against the application for registration as regards some of the goods in Classes 29, 30 and 32 on account of the absolute ground for refusal set out in Article 7(1)(b) of Regulation 2017/1001, read in conjunction with Article 7(2) of that regulation, and requested that the applicant submit its observations. As a result of a request by the applicant to that effect, the time limit within which to reply was extended until 9 August 2019.

5 The applicant submitted its observations on 19 July 2019.

6 By decision of 5 September 2019, the examiner, on the basis of Article 7(1)(b) of Regulation 2017/1001, read in conjunction with Article 7(2) of that regulation, refused to register the mark applied for in respect of the goods corresponding to the following description:

- Class 29: ‘Dairy substitutes; dairy product substitutes; milk substitutes; milk substitutes containing oats; oat milk [milk substitute]; oat-based beverages and drinks for use as a milk substitute; milk substitute based beverages and drinks [milk substitute predominating]; almond milk, almond milk-based beverages; coconut milk, coconut milk-based beverages; hemp milk used as milk substitute; peanut milk, peanut milk-based beverages; rice milk, rice milk for use as milk substitute; soya milk, soya bean milk, soya milk [milk substitute]; functional milk substitute beverages; fruit-flavored oat-based drinks; milk substitute-based drinks containing coffee; yoghurt substitutes; yoghurt substitutes containing oats; milk substitute preparations for making yoghurt; oat-based yoghurt substitute; oat-based yoghurt and drinking yoghurt free of milk and lactose; yoghurt and drinking yoghurt substitutes containing oats; fruit-flavored yoghurt substitutes; fruit-flavored yoghurt substitutes containing oats; sour milk substitutes; sour cream substitutes; sour milk substitutes containing oats; sour cream substitutes containing oats; cream substitutes; crème fraiche substitutes; cream substitutes containing oat; crème fraiche substitutes containing oats; non-dairy creamer; oat-based cooking cream and creamer; vegetable based cream; butter substitutes, margarine substitutes; oat-based butter substitutes; oat-based margarine substitutes; dairy substitutes cheese products; dairy substitutes cheese mixtures; dairy substitutes cheese powder; cheese substitutes; oat-based cheese; instant powder dairy substitutes; milk substitute powder, milk substitute powder for food and nutritional purposes; dried milk substitute powder, cream substitute powder; flavored milk substitute powder for making drinks; vegetable powders; coconut milk powder; compotes, oat-based and vegetable based dairy substitute products for slimming purposes; oat-based dietary supplement drink mixes [milk substitutes]; oat-based dietary supplemental drinks in the nature of vitamin and mineral beverages [milk substitutes]; soup powders; oat-based drinks in powder form (milk substitutes)’;

- Class 30: ‘Oat-based cake mixes, oat-based biscuit mixes; coffee-based drinks and beverages containing milk substitutes; pancakes; waffles; pancake batter; liquid batter for making pancakes; oat-based pancakes; oat-based waffles; oat-based pancake batter; oat-based liquid batter for making pancakes; corn starch derivatives in powder form for making into drinks; powdered preparations containing cocoa for use in making beverages; food dressings [sauces]; sauces; cooking sauces; prepared foodstuffs in the form of sauces; oat-based sauces; oat-based custard, oat-based vanilla custard, oat-based vanilla sauce; ice cream substitute; ice cream; ice cream made from milk substitutes; non-dairy ice cream; oat-based ice cream; oat-based flavoured ice-cream; oat-based fruit ice-cream; flavoured ice-cream, fruit ice-cream; soy-based ice cream; milk substitutes frozen yoghurt; non-dairy frozen yoghurt; fermented foodstuffs based on oats; acidified foodstuffs based on oat; oat-based grains and cereals products for slimming purposes; grain-based products for...