A distinctive trademark makes a brand easily recognizable to consumers. But what if another party later registers a mark that comes too close to yours? Trademark conflicts are common — and sometimes the courts need to step in.

A Spanish company sought to register this flying elephant with the words Impossible Bakers as an EU figurative mark for bakery products.

The American company Impossible Foods opposed the registration on the basis of its earlier word mark Impossible, but ultimately lost before the General Court of the EU. Supermarket consumers, the Court reasoned, primarily focus on visual elements. In this case, the flying elephant stands out, together with the word Bakers. The stylized Impossible (with mirrored S’s) was regarded by the Court more as a kind of promotional flourish, visually drawing less attention. As a result, this figurative mark was not considered likely to cause confusion with the earlier word mark Impossible.

In other words, the average consumer will not assume that the products come from the same or economically linked undertakings. The new figurative mark can therefore be registered.

Watch out for that flying elephant

Does this mean Impossible Bakers can now freely sell cookies under its registered mark? Not necessarily. Impossible Foods is known for aggressive enforcement, as seen in its high-profile clash with Nestlé’s Incredible Burger. Nestlé was forced to rebrand.

This ruling by the General Court only concerns the specific figurative mark with the flying elephant. The real test will come once the products hit store shelves. Inevitably, Impossible Bakers will be marketed at some point without the flying elephant. In an infringement case, courts will look at the actual use of the mark—not just the registered version with the elephant. And at that stage, Impossible Bakers may well get its fingers burned.