The CJEU's^[1] decision on the slogan ‘Vorsprung durch Technik’ has rendered the GC's previous case law obsolete. According to this old case law, a lack of distinctiveness could already be established if the semantic content of the sign points out a characteristic of a product to the consumer that concerns its market value and contains an advertising message that will be perceived by the relevant public primarily as such and not as an indication of the commercial origin of the product.^[2] Despite liberalisation, not every slogan and advertising catchphrase is automatically eligible for protection.
For example, the GC still rejected the slogan ‘INNOVATION FOR THE REAL WORLD’ despite the liberalisation of the CJEU.^[3] The signs ‘LIVE RICHLY’^[4] and ‘bestpartner’^[5] in the financial sector or ‘DREAM IT, DO IT!’^[6] for social and related services are also devoid of distinctive character. Although the consumer in the food sector does not associate the term ‘top’ with the type of products labelled with the sign, it is, however, considered to be a general endorsement and not a distinguishing mark.^[7] The slogan ‘BUILT TO RESIST’, alluding to the durability of the products, also represented a descriptive indication of quality for clothing, leather goods and office supplies.^[8] The same applied respectively to the slogans ‘Delivering the essentials of life’,^[9] ‘A NEW ALTERNATIVE’,^[10] ‘WIR MACHEN DAS BESONDERE EINFACH’,^[11] ‘BE HAPPY’,^[12] ‘achtung!’,^[13] ‘You are what you experience.’,^[14] ‘upgrade your personality’,^[15] ‘keep it easy’,^[16] ‘See More. Reach More. Treat More.’,^[17] ‘Beste Mama’,^[18] ‘I love’^[19] or ‘Juwel’^[20] for various products. The word ‘UNIQUE’, in its meaning of ‘exclusive, superb, excellent’, was used only in an advertising context.^[21] The words ‘LOOKS LIKE GRASS... FEELS LIKE GRASS... PLAYS LIKE GRASS’, in relation to artificial grass, could convey the message ‘It looks like grass... It feels like grass... is just as capable as grass for playing on', and that the goods offer characteristics similar to those of a natural lawn; the sign therefore functions as an advertising slogan.^[22] The slogan ‘MEHR FÜR IHR GELD’ also suggests to consumers that they get ‘more for their money’ when they buy the products designated by that mark – goods for everyday use; the sequence of words would therefore be perceived as an advertising slogan and not as a trade mark.^[23] ‘Gehen wie auf Wolken’ (‘Walking on clouds’) was for orthopaedic goods,^[24] ‘Ganz schön ausgeschlafen’ (‘Well rested’) for mattresses and beds^[25] was found to be devoid of distinctive character. Likewise, an exclamation mark is perceived as mere promotion or as an eye-catcher^[26] or the number ‘2’ in the sign ‘2good’ is pronounced in English and understood as ‘too’.^[27] ‘Mark1’ is only promotional in connection with e-cigarettes,^[28] ‘NETGURU’ for network-related products^[29]. On the other hand, in an early decision, the GC still considered the word combination ‘UltraPlus’ to be distinctive for ovenware, with reference to the unusual linguistic nature of the designation – but ultimately probably to an excessive extent.^[30] The GC also annulled the rejection of the trade mark ‘FUN’ for land vehicles because the meaning conveyed by the sign was not sufficiently specific.^[31] The slogan ‘WET DUST CAN'T FLY’ was also eligible for protection because ‘wet dust’ does not actually exist.^[32] Even the slogan ‘IT'S LIKE MILK BUT MADE FOR HUMANS’ was registered – very generously – because it is somewhat contradictory and triggers a cognitive process.^[33]