Is a descriptive trademark really risk-free?

The thought is obvious: Anyone can use this term – or can’t they?

You're planning to launch a new product name and are thinking about choosing an obvious term that you consider descriptive and therefore free to use. You may want to combine it with your company name. You may think it's unnecessary to research similar brands. But is that really the case?

The difficulty of assessing the "free use" of certain terms and the associated risks is illustrated by two decisions of the European Court of First Instance (ECJ). In one case, a likelihood of confusion was rejected between the signs "Sedus Ergo+" and "Ergoplus" for furniture, while in another case, a likelihood of confusion was affirmed between the signs "Team Beverage" and "TEAM" for insurance services.

In the first case (CFI, judgment of 13 October 2021, T-429/20), the CFI denied a likelihood of confusion between the signs ‘Sedus Ergo+’ and ‘Ergoplus’ for furniture, reasoning:

"The earlier mark 'Ergoplus' refers to concepts such as ergonomics and is an allusion to furniture for which ergonomics is an important feature. Likewise, the sign 'PLUS/+' complements the reference to ergonomics. Due to the low distinctive character of the corresponding elements 'ERGOPLUS' and 'ergo+', the presence of the element 'Sedus' in the registered mark allows a clear distinction between the marks."

In the second case (CFI, judgment of 1 December 2021, T-359/20), the CFI found a likelihood of confusion between the signs ‘Team Beverage’ and ‘TEAM’ for insurance services:

"The connection between the term 'team' and insurance services is too vague and undefined to give the term a descriptive character. Although the suggested teamwork may benefit potential customers, this does not explicitly apply to insurance services. The presence of the word 'beverage' is not sufficient to decisively differentiate the brands, as the first syllables are identical."