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EU court ruling takes the biscuit/That’s how the cookie crumbles in trademark law/Few crumbs of comfort in biscuit trademark ruling etc etc.
Imagine the scene: The roof of the European Court of Justice canteen, 8.30am. Three judges gather to dose up on nicotine before the morning’s judgments and hearings.
J1: So, what do you have this morning?
J2: A couple of Ukrainian oligarchs’ frozen assets and the legality of bankers’ bonus caps. You?
J1: Me? I have a billion-euro cartel fine on a handful of Fortune 500 blue-chip companies and a spot of precedent-setting in immigrant-workers’ rights. What about you?
J3: OH, not much…
J2: No, go on, what you got?
J3: …….not saying
J1: Tell us.
J1: You know we can find out, yeah?
J3: ……….. biscuits.
J3: …. [*mutters*] I have to decide whether a chocolate-chip biscuit with a chocolate layer on the inside is a unique design.
J2: Well that’s… that’s…
J1: Good for you.
J2: Yeah ….. good for you.
J1&J2: [*exit left, sniggering*]
For last week was the judicial culmination of five and a half years of litigation on this precise issue through the EU’s trademark office and then appealed before the EU courts.
Three actual grown-up lawyers for proper grown-up companies and institutions pleaded before three highly-paid and qualified European judges, arguing over whether this biscuit’s construction:
could be trademarked.
After two years of deliberation, those EU General Court judges have said: No.
They reasoned that “a cookie cannot be considered to be a ‘complex product’.”
They have refuted the biscuit company’s argument “that the layer of chocolate filling inside the cookie becomes visible during ‘normal use’ of the cookie,” adding helpfully of ‘normal use’ that this means “when it is consumed.”
They spent serious time and consideration comparing the biscuit with seven other similar biscuits, pictured in the judgment.
After careful deliberation, they conclude that the design of the biscuit doesn’t single it out as unique enough for a trademark, taking into account “the smoother surface of the contested design … together with the differences relating to the number, specific dimensions and somewhat prominent presence of the chocolate chips on each of those designs and on the contested design.”
“The irregular, rough surface on the outside of the cookie, its golden colour, round shape and the presence of chocolate chips are characteristics which are common to the conflicting designs and decisive for the overall impression produced on an informed user, so that the contested design cannot be regarded as having individual character.”
“Informed user”? Yes. An ‘informed biscuit user’, submitting the biscuit to what we can assume is ‘normal use.’
The company can still appeal to the Court of Justice.
For the final word on biscuit design, we can only assume that the ECJ would assemble the toughest and most experienced judges in such matters: