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Língua de Gato: Cacau Show x Kopenhagen

On July 1, the 12th Federal Court of Rio de Janeiro issued a ruling in which it determined that the expression “língua de gato” (“cat’s tongue”) can be used by any entity to describe chocolates with an oblong, flat shape. The decision was made in response to a lawsuit filed by Allshow Empreendimentos e Participações Ltda, the parent company of Cacau Show, against Nibs Participações Ltda, which belongs to the Kopenhagen group, and the Brazilian National Institute of Intellectual Property (INPI ). The controversy began when Cacau Show intended to launch the product “Panettone Miau”, describing it as “Classic Panettone with milk chocolate in the shape of a cat’s tongue”.

The ruling emphasized that the expression “língua de gato” (“cat’s tongue”) is widely recognized internationally to describe elongated chocolates and should not be the exclusive use of Nibs. The jusge responsible for the case also noted that Kopenhagen had failed to demonstrate the distinctiveness of the trademark when registered with the INPI. Cacau Show argued that the term was introduced in 1892, derived from a German term used by foreign manufacturers.

For its part, Nibs Participações S.A. argued that the expression “língua de gato” was not in generic use in Brazil and that it had held the exclusive use since 1940. They also claimed that Cacau Show was unduly trying to benefit from the trademark in order to associate its products with those of Kopenhagen.

The judge in charge of the trial concluded that there was insufficient evidence of acquired distinctiveness for Nibs’ “LÍNGUA DE GATO” trademark and accepted Cacau Show’s position that the term is in common use and not exclusive. Therefore, it ordered the cancellation of the registration of the “LÍNGUA DE GATO” trademark related to chocolates, based on Art. 124, VI of the Industrial Property Law (Art. 124. The following are not registrable as trademarks: VI – a sign of a generic, necessary, common, vulgar or simply descriptive nature, when it is related to the product or service to be distinguished, or one that is commonly used to designate a characteristic of the product or service, in terms of nature, nationality, weight, value, quality and time of production or provision of the service, unless it is sufficiently distinctive).

 

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