The rule is that branding doing no more than making a generic promotional claim cannot become a registered trade mark. So what about ‘You wont believe your eyes’? Distinctive enough to get on the register or doomed as too ‘laudatory’?
Who: Look-O-Look International B.V.
Where: The UK Trademark Registry
When: January 2006
An appeal was heard in respect of a refusal to register as a trademark the brand YOU WON'T BELIEVE YOUR EYES! in respect of confectionary goods in class 30.
The mark did not consist solely of plain typeface words as the letters were not uniform in their presentation and the two letter Os had each been replaced by pictures of eyes. The Registry refused to admit the mark for registration on the grounds that it was devoid of any distinctive character. This was because it suggested products of exceptional quality and value, something any marketer might want legitimately to say about his products and for this reason, wherever a trademark has a heavy so-called "laudatory" element, the registration authorities are reluctant to admit it to registration.
The applicants Look-O-Look International B.V. had sought to make the brand distinctive by the replacement of the letter Os with devices looking like eyes and the slightly higgledy piggledy representation of the words. In the view of the Registry however, this was not sufficient to enable the mark to serve in trade to distinguish the goods and services of Look-O-Look from those of other traders. The eyes did not detract from the message conveyed by the words but on the contrary served to reinforce the problematic promotional meaning. Furthermore, this perception would not be changed by the non-uniform representation of the letters in the mark.
In all the circumstances the application was refused.
Why this matters:
The determination here serves to underline the fact that strap lines and phrases are registrable as trademarks, but only if they are capable of serving as a "badge of origin". If the essence of a mark is to make a promotional claim, then only limited levels of stylisation as in this case will be insufficient to make the mark distinctive and render it registerable.