MOTION TRADEMARK

Nusret Gökçe, nicknamed Salt Bae is a Turkish chef who owns a chain of steak houses. His art of cooking and preparing meat has become world famous. He has become widely known for the way he ‘elegantly’ cuts meat and sprinkles salt. His fame comes from a viral video, ‘Ottoman Steak’ posted on Twitter in January 2017. After this, he was nicknames ‘Salt Bae’ because of the iconic way in which he sprinkles salt by letting salt fall down on his forearm then spread on the meat.

He sought registration of the motion mark as an EU Trademark in March 2017 in class 25 (clothing, trousers, jackets, overcoats, skirts, suits), 30 (coffee, cocoa, artificial coffee, coffee-based beverages, noodles, macaroni, ravioli, bread, pastry and bakery products) and 43 (services for providing food and drink, restaurants, cafeterias, cafés, canteen services, catering, pubs) of the Nice Classification.

The EUIPO had rejected the application partly in relation to Class 43, on grounds that the mark is nothing but an ordinary scene of a chef preparing meat with a pinch of salt, and cannot be considered as a distinctive mark.

The applicant attempted to submit evidence showing that the mark had acquired distinctiveness through its extensive online uses. However, the examiner felt that the evidence submitted for acquired distinctiveness did not support that the motion mark was able to perform its essential function (that of indication of origin) for the concerned goods or services. Thus, it has failed to meet the registration requirements set out under Article 7(1)(b) of the EUTM Regulations.

In December 2007, the applicant filed an appeal on the grounds that the fame of the Salt bae should allow the motion mark to function as an indicator of origin.

DISTINCTIVENESS

The Fifth Board of Appeal agreed that the manner chosen for salting a meat is normal and standard practice within the cooking sector and does not indicate an origin for the particular service of providing food. Thus, it cannot be registered for services that relate to Class 43. However, registration would be possible for the remaining services applied for in that class, that is: services for providing of drink; rental of food service equipment used in services providing food and drink; reservation of temporary accommodation, rental of banquet and social function facilities for special occasions, namely, wedding receptions, conferences and meetings.

ACQUIRED DISTINCTIVENESS

The Board held that the applicant had failed to show that the hand gesture is recognized by consumers of the services. The evidence merely showed how the sign is actually used.

The applicant submitted the number of followers on his social media platforms and views of his videos on YouTube. The Board ruled that it is a common practice to use social media to promote business. However, the applicant failed to show consumer recognition and identification of the services. Therefore, there was no clarity as to how many viewers actually accessed these websites and what Member States the relevant public originated from. The only thing that can be concluded from the evidence is that the sign is in use. But, that is not enough to show that the mark had acquired distinctiveness for the concerned services.

Secondly, the Board dealt with the issue whether the mark was originally incapable of performing the function of indicating origin and whether this function was now fulfilled as a result of the use of the mark. The identification of the relevant public of the services as originating from the applicant must be the result of the use of the mark as a trade mark which makes it capable of distinguishing the services concerned from those of other undertakings. This can be determined by considering the evidence which relates to the mark and how geographically widespread and long-standing the mark is. The Board ruled that the evidence submitted by the applicant in this regard is insufficient.

Thus, the application for goods and services in Class 25, 30 and 43 (in part) was permitted. However, registration for services for the provision of food in Class 43 was rejected.

Nonetheless, it is quite an interesting case, considering that Salt Bae’s manner of sprinkling salt on meat has been registered as an EU trademark for certain classes of goods and services.

23 aug, 2018

Category : SOCIAL MEDIA

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