On 27 April 2026, the Romanian State Office for Inventions and Trademarks (OSIM) brought into effect two of the most recent convergence instruments developed within the European Union Intellectual Property Network (EUIPN): Common Practice CP16, concerning signs describing the subject matter of goods and/or services, and Common Practice CP17, addressing the distinctive character of slogans.

Although formally framed as guidance rather than binding law, these instruments occupy a position of considerable practical authority. Their implementation marks a further stage in the gradual, yet unmistakable, consolidation of a uniform interpretative culture across the European trade mark system.

This development does not occur in isolation. It forms part of a broader, carefully constructed institutional effort to reduce divergences in examination practice among national intellectual property offices and the European Union Intellectual Property Office (EUIPO). Since the adoption of the EU trade mark reform package, convergence has evolved from an aspirational policy objective into an operational reality, supported by structured cooperation, comparative legal analysis, and the systematic distillation of case-law principles into shared administrative standards. The unanimous endorsement of CP16 and CP17 by the EUIPO Management Board in November 2025 is therefore less a procedural milestone than a reflection of an emerging doctrinal consensus at European level.

The Architecture of Convergence and the Role of Common Practices

The EUIPN has, over the past decade, developed into a central mechanism through which alignment in trade mark examination is pursued. By bringing together EUIPO, national offices, the Benelux Office for Intellectual Property, and user associations, it has created a forum in which differences in legal interpretation can be identified, debated, and ultimately reconciled. The Common Practices produced through this process are designed to capture the outcome of that reconciliation: they do not replace national or EU legislation, but they guide its application in a manner intended to ensure that materially identical cases receive materially identical treatment.

CP16 and CP17 must be understood against this background. They address two areas in which inconsistency has historically been particularly evident: the assessment of descriptiveness in relation to the subject matter of goods and services, and the evaluation of the distinctive character of slogans. Both issues sit at the intersection of legal doctrine and market reality, requiring a careful calibration of abstract principles against the way in which signs are actually perceived and used in commerce.

The Emergence of “Subject Matter” as a Legal Category

The introduction of CP16 is significant not because it creates a new ground for refusal, but because it clarifies and systematises an existing one. Article 4(1)(c) of Directive (EU) 2015/2436 excludes from registration signs which may serve, in trade, to designate characteristics of goods or services. While the provision lists several such characteristics, it has long been accepted, both in doctrine and in case-law, that this enumeration is not exhaustive. The Common Practice gives concrete expression to that understanding by recognising “subject matter” as falling within the residual category of “other characteristics”.

What is meant by “subject matter” is, at one level, intuitively clear: it refers to the thematic content, the intellectual or informational substance with which goods or services are concerned. Yet, prior to CP16, the absence of a shared analytical framework meant that national offices did not always approach this concept in a consistent manner. The Common Practice addresses this by articulating a definition that is both sufficiently precise to guide examination and sufficiently flexible to accommodate the diversity of goods and services encountered in practice. It emphasises that subject matter is to be understood as thematic content, thereby distinguishing it from matters of style, presentation, or branding, which do not fall within the same analytical category.

This distinction is more than semantic. It serves to prevent the undue expansion of the descriptiveness objection into areas where it would be neither justified nor desirable. A sign that evokes a particular aesthetic or stylistic association may well be suggestive, but it does not necessarily describe a characteristic of the goods or services in the sense required by the Directive.

Goods, Services and Their Capacity to Convey Content

A defining feature of CP16 is its insistence that the assessment of descriptiveness cannot be divorced from the nature of the goods and services at issue. Not all goods are capable of having a subject matter in the relevant sense. The Common Practice therefore focuses on those categories of goods and services whose intrinsic function involves the creation, storage, dissemination, or transmission of content. These include, in particular, digital publications, software applications, audio-visual materials, educational services, and various forms of entertainment and cultural activity.

In relation to such goods and services, the subject matter is not an incidental attribute but a defining feature. Consumers routinely select books, applications, or courses on the basis of their thematic content, and the market itself is structured around categories that reflect that content. It follows that a sign which directly denotes such a category is liable to be perceived not as an indicator of origin, but as a description of what the product or service is about.

The examples provided in CP16 illustrate this point with particular clarity. A term such as “MEDICINE” used in relation to downloadable electronic publications will, in the eyes of the relevant public, immediately identify the subject matter of those publications. In a market where books are organised and searched by topic, such a term performs a descriptive function of obvious commercial relevance, and therefore falls squarely within the prohibition of Article 4(1)(c). The same reasoning applies to other content-bearing goods, such as mobile applications, where thematic categorisation plays a central role in consumer decision-making.

The Requirement of a Direct and Immediate Link

Not every thematic reference will suffice to render a sign descriptive. CP16 insists upon the existence of a sufficiently direct and specific link between the sign and the subject matter of the goods or services. This requirement reflects settled case-law and serves as an important limiting principle. The relevant question is whether the average consumer, without engaging in any elaborate reasoning, would perceive the sign as providing information about the subject matter.

This focus on immediacy and clarity introduces an objective standard into the analysis. It is not enough that a sign might, upon reflection, be associated with a particular topic; it must convey that association in a manner that is readily apparent. Equally, the subject matter itself must be commercially meaningful. The Common Practice places considerable emphasis on this notion of commercial relevance, recognising that descriptiveness is not an abstract linguistic property, but a function of how signs operate within the marketplace.

Slogans and the Problem of Distinctiveness

If CP16 addresses the outer limits of descriptiveness, CP17 turns to a different, though closely related, issue: the assessment of distinctive character in relation to slogans. The legal framework is well established. Under Article 4(1)(b) of Directive (EU) 2015/2436, signs which are devoid of distinctive character are to be refused registration. The essential function of a trade mark, to guarantee the identity of origin of the goods or services, provides the benchmark against which distinctiveness is measured.

Slogans present a particular challenge because they are, by their nature, designed to persuade, to promote, and to communicate. Their primary function is often promotional rather than identificatory. The case-law of the Court of Justice has consistently recognised that this does not, in itself, preclude registration. A slogan may perform both functions simultaneously. The difficulty lies in determining when it crosses the threshold from mere advertising message to indicator of origin.

Between Promotion and Origin: The Role of Consumer Perception

CP17 approaches this question by placing the perception of the relevant public at the centre of the analysis. It acknowledges that consumers are accustomed to encountering slogans as elements of marketing discourse, and that this familiarity may incline them to perceive such signs as promotional statements rather than trade marks. At the same time, it rejects any suggestion that slogans should be subject to stricter legal criteria than other word marks. The same principles apply; it is their application that must take account of the specific characteristics of slogans.

The Common Practice identifies a range of factors that may support a finding of distinctiveness. These factors are drawn from the jurisprudence of the Court of Justice and the General Court, and they reflect an underlying concern with whether the slogan possesses elements capable of engaging the consumer beyond the level of a straightforward advertising message. A slogan that invites interpretation, that plays with language, or that introduces an element of surprise may be more readily remembered and, crucially, more readily associated with a particular commercial source.

Yet CP17 is careful not to elevate these factors into rigid criteria. Distinctiveness remains a matter of overall impression. A slogan may be distinctive even in the absence of overt linguistic creativity, just as the presence of such creativity does not guarantee registrability. The assessment must be conducted on a case-by-case basis, taking into account the goods or services concerned and the expectations of the relevant public.

The Limits of Protection: When Slogans Remain Mere Advertising

The Common Practice also delineates, with considerable clarity, the boundary beyond which slogans cannot pass. Where a sign consists of a simple, unambiguous, and purely promotional statement, one that merely extols the qualities of the goods or services or encourages their purchase, it will not be perceived as indicating origin. Expressions of this kind, however effective as marketing tools, lack the minimum degree of distinctiveness required for trade mark protection.

This conclusion reflects a broader policy consideration. Granting exclusive rights over commonplace promotional language would unduly restrict the freedom of competitors to communicate with consumers. The refusal of such signs therefore serves not only to preserve the essential function of the trade mark, but also to maintain the balance between private rights and the public interest.

Implications for Practice and Strategy

The incorporation of CP16 and CP17 into OSIM’s examination practice has immediate and tangible implications for those seeking trade mark protection in Romania. It signals a more structured and, in certain respects, more exacting approach to the assessment of absolute grounds for refusal. Applicants can no longer rely on variations in national practice to secure protection for signs that might be considered descriptive or non-distinctive at EU level.

At the same time, the increased clarity afforded by these Common Practices enhances legal certainty. By articulating the principles that will guide examination, they enable applicants and their advisers to assess, with greater confidence, the prospects of registration. This, in turn, facilitates more informed decision-making at the stage of brand development.

From a broader perspective, OSIM’s implementation contributes to the gradual elimination of inconsistencies within the European trade mark system. As more national offices align their practices with those of EUIPO, the distinction between national and EU trade mark regimes becomes less pronounced, at least in terms of substantive examination. This convergence is of particular importance for businesses operating across multiple jurisdictions, for whom predictability and coherence are essential.

The adoption of CP16 and CP17 marks a further step in the evolution of a genuinely integrated European approach to trade mark examination. By clarifying the treatment of signs describing the subject matter of goods and services, and by refining the criteria for assessing the distinctive character of slogans, these Common Practices address areas of longstanding uncertainty and divergence.

Their implementation by OSIM reflects not only a commitment to alignment with European standards, but also a recognition that the effectiveness of the trade mark system depends upon the consistency with which it is applied. In a legal landscape shaped as much by perception and market dynamics as by formal rules, the articulation of shared interpretative principles is indispensable. The result is a system that is, if not uniform in every detail, at least coherent in its underlying logic, a development that will be welcomed by practitioners and right holders alike.

For SMEs operating within the European market, the opportunity to obtain such advice without cost is not merely advantageous; it is, in many instances, determinative of the choices they make. By placing its expertise at the disposal of applicants under this scheme, Irimia & Partners contributes to a more informed and legally secure commercial environment, in which rights are not only created, but properly understood and effectively exercised.

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