Author: Dr. Manuela Ferrario
After the dream of a perfect vacation comes the awakening of jet lag — and the skin knows it. Traveling across time zones can be an exhilarating experience, but our body, and in particular our skin, often pays the price. Jet lag does not only affect the sleep-wake rhythm: it also alters skin regeneration processes, causing dehydration, swelling, and a dull appearance. While we adapt to new schedules and environments, the skin struggles to regain its balance, making targeted skincare essential to face the return to reality.
That is why it may seem a good idea to name a cosmetics line after the phenomenon of jet lag… or maybe not.
On July 23, the General Court confirmed the decision of the EUIPO Board of Appeal denying the registration of the trademark “JET LAG” for many cosmetic products in Class 3.
But let us take a step back. On November 9, 2023, the U.S. company Summer Fridays, LLC filed international trademark no. 1760112 “JET LAG” (word mark) for “Cosmetics; skin care products, namely, face creams, face gels for cosmetic purposes, face and body scrubs, face and body cleansers, facial moisturizers; lotions for face and body care; non-medicated skin care products, namely, creams, lotions, serums, gels, toners, cleaners, peels, face and body mists, oils, patches containing non-medicated skin care preparations; bath bombs; facial and body moisturizers with SPF; SPF sun block sprays; sunscreen preparations; beauty masks; non-medicated body care products, namely, oils and balms for the face and body” designating a large number of territories worldwide, including the European Union.
The European Examiner considered, however, that the trademark application could not be registered, as it was descriptive of the characteristics of the claimed products, at least for the part of consumers who understand the expression “JET LAG.”
The owner then filed an appeal, but the EUIPO Board of Appeal confirmed the first-instance decision. In fact, it was held that the expression ‘JET LAG’ would be perceived “by a non-negligible part of the relevant public as indicating that those products were designed to refresh, rejuvenate and restore the skin, mitigating the visible physical effects of jet lag, which are fatigue, dehydration and a dull complexion.”
The trademark owner then filed an appeal before the General Court, requesting the annulment of the Board of Appeal’s decision.
In its arguments, the applicant maintained that there was no sufficiently direct link between the trademark and the claimed products — in other words, the cosmetics at issue would not in any way address the factors causing jet lag (in particular the alteration of the circadian rhythm) nor the physical and cognitive symptoms resulting from it.
In addition, some of these physical symptoms — for example, skin dehydration — would not derive from circadian rhythm alteration, but rather from cabin air dryness and pressurization.
Moreover, the applicant pointed out to the Court the prior registration of 2019 of the trademark “JET LAG MASK,” also in Class 3, also of the same owner, requesting that the principles of equal treatment and sound administration, as well as predictability of decisions, be respected.
In its decision, the Court explained with particular clarity the reasons for rejecting the appeal, as well as why it considered that “JET LAG” is indeed descriptive and should not be admitted for registration.
First of all, it should be remembered that Community legislation pursues an objective of general interest, requiring that descriptive signs remain freely available for use by anyone and therefore not registrable. Such signs are in fact unsuitable to fulfill the essential function of a trademark, namely the unique identification of the commercial origin of a product or service.
A sign therefore cannot be registered if it presents a direct connection with the claimed products or services, such that the relevant public can immediately and effortlessly perceive the characteristics of such products or services.
In order to verify whether the described impediment applies in this specific case, the Court had to assess whether all the claimed products were affected by such descriptiveness. In this case, the products can be divided into four macro-categories: suncare products, bath and body products, skincare products and cosmetics. All the identified products are intended to improve the appearance and health of the skin (of the face and body), and therefore can be treated in a homogeneous way.
The Court acknowledged that these products indeed cannot act on the causes of jet lag nor on the cognitive symptoms resulting from it; however, they are able, at least abstractly, to address the purely physical symptoms linked to it (such as, for example, skin sensitization or dull and dehydrated complexion).
Consequently, consumers, without any further reflection, could connect the trademark with the function of the products claimed.
Lastly, it is worth emphasizing the passage of the decision regarding the comparison with already registered trademarks (the aforementioned “JET LAG MASK”): the Court indeed recalled that previous decisions must be taken into consideration but are not binding, since the application of the principles of equal treatment and sound administration must in any case comply with the principle of legality. Therefore, a possible unlawful act previously committed by the Office cannot be invoked to one’s advantage.
In conclusion, this recent case once again highlights EUIPO’s growing strictness in determining the distinctiveness of trademarks, something to be taken into account at the time of filing of a trademark.
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