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Pepsi crushed the competition in EU crisp invalidation claim

Written by Ellis Sweetenham on 30 November 2018

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PepsiCo, the worldwide recognised soft drinks company, has taken a pop at an EU trade mark and won.

They claimed that the EU mark ‘Exxtra Deep’ registered by Intersnack Group for crisps and other snacks was devoid of distinctive character and descriptive of the goods and services.

When Pepsi first made the invalidity claim, the EU Intellectual Property Office only partially upheld the invalidation.

They accepted that the term ‘Deep’ can be used by manufacturers to describe deep ridges put in crisps to make the product shape.

However, the EUIPO deemed the mark not to be descriptive for some goods, including dried fruits and preserved vegetables.

This decision was appealed by PepsiCo.

The matter then considered by the General Court.

Looking at the matter, they ruled that the EUIPO had made a mistake in their assessment as crisps can be made of fruit and vegetables too.

Therefore, the General Court deemed the mark to be descriptive for these terms too and invalidated the whole mark, overruling the EUIPO’s decision.

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