In Continental Bulldog Club Deutschland eV v OHIM [2013] T-383/10, the EU General Court has upheld a decision of the Office of Harmonization for the Internal Market (OHIM) Board of Appeal rejecting a Community trade mark (CTM) application for CONTINENTAL in respect of dogs and dog breeding services. The Court found that the term was descriptive of the "continental bulldog" breed.

BACKGROUND

Continental Bulldog Club (CBG) applied for the word CONTINENTAL as a CTM for dogs and the keeping and breeding of dogs. OHIM rejected the application, finding that the term was descriptive of a breed of dog called the Continental Bulldog. The mark consequently also lacked distinctive character. The decision was upheld by OHIM’s Board of Appeal and CBG appealed to the General Court.

DECISION

The General Court noted that the relevant public in this case was the average consumer in general, such as animal lovers interested in dog keeping services and professionals such as dog breeders or pet shop owners. As the goods and services concerned were not purchased or sought after on a daily basis, the level of attention of the relevant public was higher.

Considering the descriptiveness of the word "continental", the General Court noted that this referred to adjectives such as "European, continental, non-insular". The Board of Appeal had found that it was decisive that the word would be understood as designating a breed of bulldogs. In coming to this conclusion, the Board of Appeal relied on a number of websites that referred to a breed of dog already recognised in Switzerland by the Schweizerische Kynologische Gesellschaft (SKG) and the creation and breeding of such dogs, which was CBG’s goal.

Reviewing CBG’s website, the Board of Appeal also asserted that the term had been chosen to distinguish the mark applied for from the English Bulldog breed. It emerged that CBG was considering making, as soon as the various conditions laid down by the Federation Cynologique Internationale (FCI), the international federation of kennel clubs, were fulfilled, an application for the new breed to be registered by the FCI.

The Board of Appeal concluded that "continental" was evocative of the name of a breeding kennel or a breed of bulldogs. Where a breeder of a new breed gave that name to that breed, that name became the name of that type of dog. The EU General Court also noted that once the recognition process of a breed of dog by one or more federations was completed, the name of that breed designated, in a generic manner, the dogs belonging to it in the eyes of the relevant public.

CBG argued that the Continental Bulldog was not yet an officially recognised breed and that the application could not be refused on the basis that there was a risk that the mark would in the future be considered descriptive. The evidence showed, however, that the term had been recognised in Switzerland since 2004 and the General Court found that the relevant section of the public in the European Union would have had access to Swiss and German websites containing this information. Accordingly, at least part of the relevant public perceived Continental Bulldog as referring to a breed of dog.

With respect to CBG’s assertion that it intended to maintain a closed breeding kennel so that only dogs with a pedigree proving that they came from that breeding kennel had the right to be designated by the CTM once registered, thereby denoting a single origin of the goods and services concerned, the General Court noted that the commercial intentions of trade mark proprietors were subjective, often changed and could not be considered. Further, from a biological point of view, even dogs who did not come directly from that closed breeding kennel could nonetheless remain dogs from that "breed".