The Court held that the application might serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods. The registration of the application as a trade mark would not be in the public interest, namely the free use by everybody of descriptive signs or indications relating to the characteristics of goods or services. Such signs are incapable to perform the essential function of a trade mark, namely identification of the commercial origin of the goods or services, thus enabling the consumer to repeat the experience of acquiring the marked goods or services, if he was satisfied with such products or services,  to avoid repeated dissatisfaction by a subsequent acquisition, if the experience with them was negative. Such signs and indications are thus only those which might serve in normal usage from a consumer’s point of view to designate, either directly or by reference to one of their essential characteristics, goods or services such as those in respect of which registration is sought. Accordingly, a sign’s descriptiveness can only be assessed by reference to the goods or services concerned and to the way in which it is understood by the relevant public.

The court pointed out that the criteria established by the case-law for the purpose of determining whether a word mark composed of several word elements is descriptive or not are identical to those applied in the case of a word mark containing only a single element. In the present case, the goods referred to in the trade mark application were alcoholic and non-alcoholic drinks falling within classes 32 and 33. These were staple consumer goods aimed at a broad public and distributed not only by the intermediary of retailers (supermarkets, shopping centres or large stores) or by specialised outlets and specialised mail order, but also in restaurants and cafés. The Board of Appeal of OHIM therefore acted correctly in holding that the correct perspective to adopt was that of the average consumer, reasonably well informed and reasonably observant and circumspect. Whereas the word sign in question consisted of German words, the relevant target public was German speaking. Thus the relevant public in relation to which the absolute ground for refusal should be assessed was that of German-speaking consumers. Considering the meaning of the expression ‘vom ursprung her vollkommen’ this combination expresses in a directly perceptible manner that the designated goods were perfect from the point of origin, namely from the beginning, and that they were therefore unequalled, without blemish and not in need of any processing or any improvement. The slogan thus indicated that the high quality of the product was based on the quality of the original produc, in particular that the the noun ‘ursprung’ refered to the source or origin, whereas the adjective ‘vollkommen’ indicated perfectionand maximum quality. Regarding the relationship between the slogan and the goods concerned, the Board of Appeal took the view that the alcoholic and non-alcoholic drinks which the slogan designates and the ingredients and preparations intended for their manufacture are perfect in quality from the outset, namely from the source or place of origin. Thereffor the court  held the Board of Appeal’s assessment of the descriptive character of the mark being demonstrably correct.

As far as the claim of an alleged unusual character of the combination of words in dispute is concerned, shown in particular by the fact that the expression ‘vom ursprung her vollkommen’ cannot be found using an internet search engine, the court held that such claim could not affect the Board of Appeal’s assessment, because the slogan was grammatically correct and did not constitute a combination of words which in German is unusual or striking. Second, according to the case-law, in order to refuse to register a trade mark, it was not necessary that the signs and indications composing the mark should have been in actual in use at the time of filing of the contested application for registration. It was sufficient that such signs and indications could be used for such purposes.

It must, however, be pointed out that the principal words which make up the mark applied for have already been used in slogans concerning drinks. OHIM refers in this regard to the following examples: ‘vollkommener genuß’ of Efes Pilsener, ‘gerolsteiner. einfach vollkommen’ of Gerolsteiner, ‘in jeder weise vollkommen’ of Jacobs Kaffee, ‘ursprung des biers’ of Weihenstephan or even, ‘so gesund wie sein ursprung’ of Volvic. The fact that no example of a slogan containing the two important words which make up the sign in dispute could be cited does not affect OHIM’s conclusion regarding the existence of a requirement of availability. It follows from the case-law  that it is sufficient if those signs and indications are capable of being used for descriptive purposes. It must in addition be pointed out that it is necessary only to consider, on the basis of the relevant meaning of the word sign at issue, whether, from the viewpoint of the public addressed, there is a sufficiently direct and specific relationship between the sign and the goods of the application.

An argument that both the expression as a whole and its constituent elements are equivocal, open to interpretation, capable of being understood in a number of ways and therefore lacking a clear and specific meaning, was held irrelevant. Even if the word ‘ursprung’ can have several meanings in the context of the slogan its meaning is clear, namely ‘source’ or ‘origin’. Likewise the term ‘vollkommen’ can be read both as an adjective and and as an adverb. In the context of the slogan it cannot be perceived as other than an adjective. Thus the argument that the expression is as a whole equivocal is based solely on the description of possible meanings of its individual constituent elements. In that regard the semantic interpretation of the mark employed by OHIM is confirmed by the result of an internet search carried out by the applicant and on which it relied in its second plea in law. The phrase concerned ‘wasser muss vom ursprung her vollkommen sein’ (water must be perfect from the point of origin) derives from an internet site relating to goods marketed by the applicant itself. The expression does not therefore appear to be equivocal in any way.

The Court found that the reference made by the conceptual content of the mark to the characteristics of the goods, namely alcoholic and non-alcoholic drinks in classes 32 and 33 was sufficiently direct and concrete.  The slogan clearly refers to the purity and perfection of the ingredients of the drinks, and in particular to that of the water used. The purity and perfection of the ingredients are of particular significance for the goods falling within classes 32 and 33. With regard to mineral waters, the perfect state of the source water used is decisive in determining the quality of the drink, both as regards the taste and as regards health. So far as fruit juices, beers and other alcoholic drinks are concerned, the origin of their ingredients is also a factor of great significance in determining the quality of those products. The Court therefore found that those words, alone or in combination, refered directly and clearly to the characteristics of the goods covered by the application and that the applicant was wrong to argue that the sign refers at the very most to a perception or to a very general positive feeling. In addition, it was reasonable to acknowledge that the purity and the original perfection of the ingredients of the drinks are characteristics which are taken into consideration by the consumer addressed when making his choice. From the viewpoints of the public addressed, there is therefore a sufficiently direct and concrete relationship between the word combination concerned and the goods falling within classes 32 and 33.