Following a ruling by the European Court of Justice, Audi won the battle to register as a trademark the slogan ”Vorsprung durch Technik”.
On 21 January 2010, the Court of Justice of the European Union rejected the OHIM's refusal to grant a Community trademark for the words “Vorsprung durch Technik”.
The application was filed with the OHIM in respect of a variety of goods and services in classes 9, 12, 14, 16, 18, 25, 28, 35 to 43 and 45. The OHIM refused the application on the basis that the slogan lacked a distinctive character. It was stated that the slogan was a general and celebratory message meaning ”progress through technology”.
Audi appealed and was successful only in class 12 (vehicles). This success was mainly due to the evidence submitted which stated that the slogan had become a trademark of Audi by virtue of its use. However, as no such evidence was submitted in relation to the other classes, the application was refused in those other classes.
Audi filed an appeal with the Court of First Instance, which dismissed the appeal. The Court of First Instance took the view that, even if the slogan “Vorsprung durch Technik” has a number of possible meanings, or constitutes a play on words, or is perceived as imaginative, surprising and original, and is very memorable, this nevertheless does not mean that it is distinctive. The slogan would be distinctive if, through these elements, it was perceived immediately by the target audience as an indication of the commercial origin of the goods and services which it promotes. In the case at hand, according to the Court, the target audience is likely to perceive the slogan as a promotional formula and not as a trademark.
Audi then took the matter to the Court of Justice, which reversed the previous court's decision and allowed the application.
According to the Court, the mere fact that a slogan is perceived by the target audience as a promotional formula, and that, because of its celebratory nature, it could in principle be used by other organisations, is not sufficient, in itself, to support the conclusion that the slogan lacks a distinctive character.
A slogan can be perceived by the target audience both as a promotional formula and as an indication of the commercial origin of goods or services. It follows that, in so far as the target audience perceives the slogan as an indication of that origin, the fact that the slogan is at the same time understood – perhaps even primarily understood – as a promotional formula has no bearing on its distinctive character.
Even if it were to be supposed that the slogan ”Vorsprung durch Technik” conveys a general message to the effect that technological superiority enables the manufacture and supply of better goods and services, that fact would not support the conclusion that the slogan lacks any inherently distinctive character. However, simple as such a slogan may be, it cannot be categorised as ordinary to the point of excluding, from the outset and without any further analysis, the possibility that that slogan is capable of indicating to the consumer the commercial origin of the goods or services in question.
As Audi observed, the combination of words ”Vorsprung durch Technik” suggests, at first glance, only a causal link, and accordingly requires a measure of interpretation on the part of the target audience. Furthermore, that slogan has a certain originality and resonance that make it easy to remember. Lastly, as it is a widely known slogan which has been used by Audi for many years, one cannot dismiss the fact that the target audience are used to establishing the link between that slogan and the motor vehicles manufactured by that company, which makes it easier for them to identify the commercial origin of the goods or services in question.
