Health Care

Baby Dry – The means test on assessing whether a mark is descriptive

Photo: Collection of National Media Museum (
Baby Dry – The means test on assessing whether a mark is descriptive

For a long time, there had been an ongoing debate about which characteristics in a Community Trade Mark (CTM) should indicate its singularity and uniqueness, and when it can be said that the same lacks any distinctive quality. The landmark case of Procter and Gamble has provided some insight into the above. Procter and Gamble was seeking to register the phrase “Baby-Dry” (the “Mark”) for their disposable nappies product.

When Procter and Gamble originally applied for the registration of the Mark, it was initially refused by the Office for Harmonization in the Internal Market (“OHIM”), also known as the Community Trade Marks Office. OHIM originally held that the Mark consisted of words that were descriptive of nappies and was therefore not distinctive. A similar sentiment was echoed by the Court of First Instance (the “CFI”), who also believed that that name “Baby-Dry” simply communicated the motto of the product, but added no distinctive quality that made the name different from similar products created by brands of the same market niche.

The officials at Procter and Gamble responded to this by saying that a trade mark should not be refused unless they are mere general descriptive terms of the product and lack any distinctive signature elements. They further argued that the phrase “Baby-Dry” should be viewed as a whole rather than segmented into two separate words. Viewing the Mark as a whole would give the product a unique identity that is different from the way consumers generally refer to nappies or their basic characteristics.

However, OHIM maintained its stance of considering the two words contained within the Mark separately. According to OHIM, the descriptiveness of a name should not only be determined based on the meaning of each of the words taken separately, but their usage in common parlance should be considered as well.

The European Court of Justice (the “ECJ”) eventually overturned the CFI ruling and allowed the Mark to proceed to registration. The ECJ held that in considering whether the combination of the two words “Baby” and “Dry” constitutes the general way of referring to nappies, it was decided that people never referred to nappies as “Baby-Dry” in common day to day language. As a result, the ECJ concluded that the Mark had a distinct quality of its own. The unusual syntactic juxtaposition of “Baby” and “Dry” made the Mark distinct enough as the customers are quite unlikely to consider it as a description of nappies.

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