Can an evocative slogan such as “Sustainability through Quality” be registered as a trademark?

The criteria applied by the General Court

In Case T-253/22, the General Court began by reaffirming a fundamental principle of trademark law: a trademark possesses distinctive character where it is capable of identifying the commercial origin of goods or services.

In paragraph 20 of its judgment, the Court explained that distinctive character requires the sign to enable consumers to identify the goods as originating from a particular undertaking and thereby distinguish them from those of other undertakings.

The assessment must therefore take into account both the goods and services for which registration is sought and the perception of the relevant public (paragraph 20).

Although these principles are well established, their application to advertising slogans raises particular difficulties.

The General Court confirmed that advertising slogans are not excluded from trademark registration simply because of their promotional nature (paragraph 22). It nevertheless observed that average consumers are not generally accustomed to making assumptions about the commercial origin of goods on the basis of advertising slogans (paragraph 24).

Consequently, establishing the distinctive character of a promotional expression may, in practice, prove more difficult than demonstrating the distinctiveness of an invented trademark.

The Court addressed this issue more specifically in paragraph 25, identifying several characteristics that may support a finding that a slogan possesses distinctive character. In particular, a slogan may:

• have several meanings;
• constitute a play on words;
• be perceived as imaginative, surprising or unexpected;
• require some interpretative effort or trigger a cognitive process in the minds of the relevant public, rather than simply conveying an advertising message.

This reasoning is central to the Court’s subsequent analysis. In paragraph 27, the General Court explained that a slogan lacks distinctive character where it is perceived solely as a straightforward promotional formula.

Applying these principles to “Sustainability through Quality”, the Court found that the expression:

• was entirely comprehensible and clear to English-speaking consumers (paragraph 40);
• contained no unusual, imaginative, surprising or unexpected features (paragraph 40);
• did not prompt any intellectual analysis or require interpretative effort (paragraph 42);
• was likely to be perceived exclusively as a promotional formula rather than an indication of commercial origin (paragraph 48).

The Court therefore concluded that the sign merely conveyed a general message: sustainability can be achieved through quality.

Although this statement may be appealing and effective from a marketing perspective, it was insufficient to fulfil the essential function of a trademark.

The decisive distinction thus lies in whether the relevant public perceives the slogan as an indication of commercial origin rather than simply as a promotional message.

This finding makes the comparison with the earlier Audi judgment concerning “Vorsprung durch Technik” (commonly rendered in English as “Progress through Technology”) particularly relevant.

Although the applicant relied on that precedent, the General Court considered the two cases materially different.

The comparison with Audi: distinguishing promotional slogans from distinctive trademarks

In support of its application, the company relied on the well-known Audi case concerning the slogan “Vorsprung durch Technik”, examined by the Court of Justice of the European Union in its judgment of 21 January 2010, Case C-398/08 P.

The General Court expressly addressed this comparison, explaining why the reasoning adopted in the Audi judgment could not be directly applied to “Sustainability through Quality”.

First, the Court recalled that, in the Audi case, particular significance had been attached to the fact that the slogan was well known and had been used by Audi for many years to promote its vehicles (paragraph 51).

This circumstance was relevant because the slogan’s established reputation and prolonged use had familiarised consumers with its association with a particular undertaking, making it easier for them to identify the commercial origin of the goods.

By contrast, in the case of “Sustainability through Quality”, the applicant had not demonstrated any comparable degree of recognition (paragraph 51).

A second important distinction concerned the structure of the slogan and the way in which it was perceived by the relevant public.

Referring to the Audi judgment, the General Court recalled that the Court of Justice had considered “Vorsprung durch Technik” capable of having several meanings, constituting a play on words or being perceived as imaginative, surprising and unexpected, thereby making it memorable (paragraph 52).

The Court of Justice had also emphasised that the slogan displayed a degree of originality and expressive force and that understanding its meaning required some interpretative effort (paragraph 53).

These characteristics — multiple meanings, wordplay, originality and the need for interpretation — had supported the finding that the Audi slogan possessed the minimum degree of distinctive character required to overcome the ground for refusal established by Article 7(1)(b) of the EU Trademark Regulation.

The General Court found, however, that none of these characteristics was present in “Sustainability through Quality”. As stated in paragraph 54, unlike “Vorsprung durch Technik”, the trademark applied for displayed none of those features.

The expression was immediately understandable, straightforward and devoid of semantic ambiguity or any particularly distinctive use of language. It required no additional interpretative effort from consumers and was therefore perceived simply as a promotional statement.

Accordingly, the substantial differences between the two cases prevented the General Court from relying on the assessment made by the Court of Justice in Audi to recognise distinctive character in the trademark applied for (paragraph 55).

The General Court therefore upheld the EUIPO’s assessment, dismissed the action in its entirety and ordered the applicant to pay the costs.

The comparison with the Audi slogan provides a clearer understanding of the distinction between an advertising expression capable of trademark registration and one that remains merely promotional.

A slogan is not ineligible for registration simply because it serves an advertising purpose. However, to fulfil the function of a trademark, it must possess an additional distinctive element. This may consist of ambiguity, multiple meanings, an unexpected formulation or a linguistic structure capable of prompting some degree of interpretation on the part of the relevant public.

Where a slogan encourages consumers to engage in such an interpretative process, it may satisfy the minimum threshold of distinctiveness required by Article 7(1)(b).

Conversely, where an expression merely communicates a positive characteristic of the goods or a generally appealing corporate philosophy in a direct and straightforward manner — as in the case of “Sustainability through Quality” — it remains within the sphere of commercial advertising.

Ultimately, the determining factor is not whether a slogan has an advertising function, but whether consumers are capable of perceiving it as an indication of commercial origin.