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Moutarderie de Luxembourg needs no introduction in Luxembourg. In fact, everyone knows the name of this company which has been producing mustard, mayonnaise, ketchup, andalouse and BBQ sauces for 100 years in Luxembourg.
Despite this renown, the BOIP ( Benelux Office for Intellectual Property) initially refused to register the logo as a trademark for goods and services in classes 30 (mustard, mayonnaise, ketchup, sauces etc.) and 35 (commercial administration services, sales services etc.).
The provisional refusal was based on article 2.11 "Refusal on absolute grounds" and article 2.2bis, paragraph 1, under b. and c. "Absolute grounds for refusal or invalidity" of the Benelux Convention on Intellectual Property which states that "the following shall not be registered (...) : b. trademarks which are devoid of any distinctive character; c. trademarks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services".
In order to overcome this provisional refusal, we based our arguments on both inherent distinctive character of the sign as well as based on distinctive character acquired through use as provided for in article 2.2bis, paragraph 3 of the Benelux Convention on Intellectual Property which states that "a trademark shall not be refused registration [...] if, before the date of application for registration, following the use which has been made of it, it has acquired a distinctive character". We prepared and submitted extensive proof of use of the sign in relation to the above referenced goods and services in the Benelux countries, in particular by supplying newspaper articles, promotional material, internet traffic statistics etc. which clearly show that the Benelux average customer is already very well acquainted with the goods distributed under the sign and is perfectly able to identify its commercial origin.
Having reviewed our arguments and proof of use submitted, the examiner of the BOIP finally decided to accept registration for all the goods and services requested in classes 30 and 35.