In trademark law, descriptive designations may not be monopolised as trademarks. Such designations must remain available to all. For example, the word "apple" cannot be a trademark for apples. Gillette's attempt to register "The best a man can get" as a trademark was also rejected by the European Union Intellectual Property Office. This is because that phrase commends the quality of Gillette's products and is understood by the public not as a trademark, but as commendation.

In 2020, Swinkels Family Brewers tried to register the pay-off "INTENSE BY NATURE" for beer as a Benelux trademark. The Benelux Office for Intellectual Property (BOIP) refused the application. BOIP ruled that the trademark application concerned a commendatory phrase in common parlance and could be descriptive of beers. Swinkels did not agree with this decision and went to the Benelux Court of Justice (in Dutch).

Swinkels argued that INTENSE BY NATURE is not descriptive because 'being intense by nature' would not be a typical characteristic of beer. In addition, Swinkels argued that there are no stricter requirements for assessing slogans as trademarks and that the circumstance that the pay-off is understood as a sales promotion wording does not necessarily mean that the phrase is not considered a trademark. 

The Benelux Court of Justice disagreed. According to the Court, the relevant public will perceive the slogan as a descriptive and commendatory indication of Swinkels' beer. The test is not whether the slogan specifically describes beer. Describing a characteristic of the beer (in this case, 'intense') is sufficient to refuse the mark. Swinkels' pay-off was thus not registered as a trademark after an intense legal battle.

This ruling shows once again that it is not easy to protect pay-offs under trademark law. These short phrases are often commendatory or give a brief description of the product. Those who still want to register a pay-off as a trademark would be wise to disregard formulations that are mainly advertising or descriptive.