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Mar 04, 2018

According to a recent ruling by the Court of Justice of the EU, the exception for trademarks laid down in Article 28(2) of the Claims Regulation also applies to product marketed as a medicinal product before 2005 and subsequently marketed as a foodstuff, provided that they had the same physical characteristics and bore the same trade mark or brand name.

Pursuant to Article 28(2), products bearing trademarks or brand names existing before 1 January 2005 which do not comply with that regulation may continue to be marketed until 19 January 2022, after which time the provisions of the Claims Regulation will apply.

German firm Nelsons was selling ‘Bach Flowers’ remedies as medicinal products using the trademark RESCUE, which was then registered for medicinal products. In 2007, Nelsons also registered RESCUE as a trademark for foodstuffs. A ruling by the Higher Regional Court in Hamburg, had held that ‘Bach flower’ remedies were not medicinal products, but foodstuffs. Following that judgment, Nelsons, began marketing the remedies at issue not as medicinal products, but as foodstuffs, without making any changes to them.

‘RESCUE DROPS’ and ‘RESCUE NIGHT SPRAY’ suggested to the consumers that the use of the Nelson remedies was recommended so they can be ‘rescued’ when facing certain health problems. As such, they were considered reference to general, non-specific benefits for overall good health and health-related well-being, within the meaning of Article 10(3) of the Clams Regulation.

The question was whether the exception in Article 28(2) was applicable in the situation at hand, where the trademark was used in products marketed as medicinal products that were only marketed as foodstuffs after 2005.

The Court ruled first that the term “products” in that provision refers to foodstuffs, since according to Article 2 of Regulation No 178/2002, to which Article 2(1)(a) of the Claims Regulation refers for the definition of ‘food’, that definition does not cover ‘medicinal products’.

Then, the Court went on to say that the products were “objectively” foodstuffs “both during the relevant period with regard to Article 28(2) of that regulation, that is before 1 January 2005, and now”. For that reason, they were classified as ‘products’ within the meaning of Article 28(2) of the Claims Regulation and the exception applied.

Judgment of the Court (Third Chamber) of 23 November 2016 In Case C‑177/15, Nelsons GmbH v Ayonnax Nutripharm GmbH, Bachblütentreff Ltd.

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