When Weak Signs Fail to Function: Increased Scrutiny in EU Trademark Practice

Recent EUIPO and CJEU practice suggests a more rigorous approach to weak signs. The issue is not only whether a sign is descriptive in the traditional sense, but whether the relevant public will perceive it as performing the essential function of a trademark: indicating commercial origin.

EU law does not formally recognise a separate “failure to function” doctrine. In practice, however, recent decisions show that the origin-indicating function of the sign often drives the analysis under the established absolute grounds, particularly Article 7(1)(b) EUTMR. Signs with a clear capacity to operate as badges of origin are more likely to obtain, retain and support meaningful protection. This has practical consequences for filing, enforcement and portfolio strategy.

When a trademark does not “function”: is it more than a descriptiveness?

The starting point remains orthodox: a trademark must be capable of indicating the commercial origin of goods or services. In other words, the sign must enable consumers to distinguish the goods or services of one undertaking from those of another. This essential function underpins Article 7(1)(b) EUTMR on lack of distinctive character. If a sign does not fulfil that function, it cannot be registered — or, if already registered, may later prove vulnerable.

The difficult cases are those in which the sign is not plainly descriptive yet still does not read as a trademark. Practice shows that examiners, Boards of Appeal and the EU courts increasingly focus on how the sign will be perceived in its commercial context: as branding, or merely as decoration, information, praise, social messaging or ordinary promotional language.

This is what is often described as a “failure to function”. The expression should not be understood as a separate EU ground of refusal. Rather, it captures a practical assessment within the existing legal framework: whether the relevant public will rely on the sign as an indication of origin. In BECAUSE THERE IS NO PLANET B (T-324/22), for example, the General Court (GC) treated the sign as an activist slogan perceived as an ordinary advertising message, not as a sign identifying commercial origin.

In such cases, the objection is not merely semantic. The decisive issue is the role the sign plays in the marketplace and whether consumers will understand it as identifying a single commercial source.

Typical categories where marks fail to function

Recent decisions illustrate this point most clearly where the sign conveys a message that consumers can understand immediately, but not as branding. The following categories are not closed or mutually exclusive; they show recurring situations in which the origin-indicating function becomes doubtful despite the sign not always being plainly descriptive.

1. Promotional slogans and commonplace phrases

Short slogans or laudatory expressions (e.g. “QUALITY YOU CAN TRUST”) are often refused because consumers perceive them as advertising messages, not as trademarks. Even where such slogans are not strictly descriptive, they may still lack the capacity to distinguish origin due to their banal or formulaic nature.

For instance, in the case T-33/25 Crave no more, the GC held that the slogan lacked distinctive character because the public would see it solely as a laudatory advertising message “intended to communicate a statement of value”. The GC also expressly mentioned that the plain graphic presentation in grey capital letters and standard font failed to endow any distinctiveness to the sign. Slogans are not subject to stricter criteria but must still be capable of indicating commercial origin.

2. Decorative or ornamental use

Signs used in a way that appears ornamental, especially on packaging or goods, may fail to function as trademarks.

This is particularly relevant in sectors such as clothing and accessories or consumer goods with prominent packaging design. If consumers perceive the sign merely as decoration, its origin-indicating function disappears. In case T-304/24 sprd.net v EUIPO concerning an “I ❤️” position mark for clothing, the GC confirmed that the sign would immediately be perceived as the expression “I love” which lacked distinctive character, and its placement on clothing did not transform it into an indicator of origin.

3. Informational or regulatory indications

Terms and signs that convey information (e.g. product features, regulatory compliance, or usage instructions) may also fail to function as trademarks—even if they are not purely descriptive in a strict legal sense. Such marks may be perceived by the relevant public as informational content (product information, instructions, quality indications, certification-style messages etc.) rather than branding.

The point is reflected in EUIPO practice on non-distinctive signs. Common labels, pictograms, typographical symbols and other ordinary informational devices are generally unlikely to be perceived as badges of origin unless they contain elements capable of individualising commercial source.

4. Widely used industry wording

Where a sign consists of elements frequently used by multiple traders, the public may not perceive it as identifying a single commercial source. This is often encountered in:

• nicotine pouch branding (“ICE”, “MINT”, “FRESH”)
• food products
• technical or functional terminology

Even if the sign is not fully descriptive, its ubiquity weakens its ability to function as a trademark.

The role of consumer perception

Across all these scenarios, one factor is decisive: how the relevant public perceives the sign in context. The assessment should be objective and based on the overall impression of the mark as used or applied for. This aligns with settled EU case law: a mark must actually operate in practice as an indicator of origin, not merely be capable of doing so in theory.

Practical takeaways for brand owners

1. Avoid relying on weak or common elements alone

If your mark is built on widely used terms or industry clichés, consider combining them with:

• distinctive word elements, or
• strong figurative components

A nicotine pouch brand built only around terms such as “ICE”, “MINT” or “FRESH” is likely to face both registrability and enforcement limitations. A distinctive house mark, coined word or memorable figurative element can help shift the overall impression from a product description to branding.

2. Think about how the mark will appear in use

Even a registrable sign may fail if used in a purely decorative manner. Presentation matters.

For example, a short phrase printed prominently across the front of a T-shirt may be perceived as decoration or self-expression, whereas the same sign used consistently on labels, tags, packaging and online product listings may more readily be understood as a badge of origin.

3. Be cautious with slogans

To function as a trademark, a slogan should:

• require some interpretation, or
• create a memorable impression beyond a generic marketing message

For instance, slogans such as “feel the difference” are vulnerable because they communicate ordinary praise. A more unusual phrase, unexpected wording or distinctive visual presentation may improve the position, but only if consumers are still likely to perceive the sign as identifying commercial origin.

4. Consider evidence strategy early

If the sign is borderline, evidence should not be an afterthought. From the outset, brand owners should consider how the role of the mark as an indicator of origin could be demonstrated, if its distinctiveness is later challenged.

Conclusion

The concept of “failure to function” captures a practical shift in EU trademark practice: a sign must do more than avoid a descriptive meaning; it must be perceived by consumers as identifying commercial origin.

For practitioners and brand owners alike, this means moving beyond formalistic assessments and focusing on the real-world perception of signs in commerce.

The developing case law confirms that distinctiveness is not merely a formal threshold for registration. It is the condition that determines the practical value of a trademark throughout its lifecycle: at filing, in opposition and cancellation proceedings, and in subsequent commerce.