The kitchen
stays cold for
Wienerwald.
The kitchen
stays cold for
Wienerwald.
of
Does a trademark on a menu automatically protect the dishes listed there as well? What evidence does a company need to ensure that a trademark remains protected not only for the restaurant business but also for individual food and beverage items?
What is it all about?
Since 1998, Wienerwald Holding GmbH has owned a figurative trademark protected throughout Europe featuring the well-known chicken logo. The protection covers both the serving of guests and specific food and beverage items, including meat dishes, salads, pastries, coffee, and spices.
In January 2024, the law firm Glawe Delfs Moll filed a request for the complete cancellation of this trademark. The allegation: It had not been used sufficiently for years. Under European law, a trademark that is no longer used by anyone loses its protection, so that no one can secure rights to a trademark that they no longer use in the course of business.
Wienerwald mounted a defense based on a comprehensive body of evidence. This included franchise agreements, affidavits from the managing director and a former franchisor, receipts from the restaurant in Torfhaus in the Harz Mountains that opened in November 2023, menus, advertisements, and numerous photos of restaurants and dishes.
However, in August 2025, the EUIPO granted the request for cancellation only in part. Protection for the mere serving of guests remained in effect. For lodging, as well as for all specific food and beverages, the trademark was canceled. Wienerwald filed an appeal against the cancellation regarding food and beverages.
Decision of the Board of Appeals
The Second Board of Appeal of EUIPO dismissed the appeal on the grounds that Decision dated July 10, 2026 – Case No. R 1887/2025-2 completely. The trademark is thus canceled for those specific food and beverage products.
The central issue in the proceedings was whether simply displaying a trademark in a restaurant is sufficient to protect the food and beverages served there under trademark law . The Chamber clearly ruled against this. In its view, serving guests is distinct from the sale of individual products. A restaurant can serve a wide variety of dishes under its own name, regardless of the trademark under which those dishes are sold or whether they bear a separate product trademark at all.
Restaurant services provided under a trademark refer to the serving of food and beverages in general, regardless of whether the food and beverages themselves are offered under the same trademark, under a third party’s trademark, or without any specific trademark reference at all.
Unlike with the Big Mac
Wienerwald had cited a well-known ruling regarding the BIG MAC trademark. In that case, a court had ruled that the use of a trademark name for a specific product on a menu also constituted trademark use for that product. The chamber, however, did not accept this comparison. In the BIG MAC case, two different trademarks had been used—one for the restaurant chain and one for the specific product, namely the name of the chain and the name of the burger, respectively. Wienerwald, on the other hand, consistently used only a single trademark, both for the entire business and for individual dishes. This situation was not comparable to the BIG MAC case.
Lack of evidence
In the end, it was primarily the sheer volume of admissible evidence that was decisive. The relevant time period during which use had to be proven ranged from January 10, 2019, to January 9, 2024. Many of the documents submitted fell outside this period—such as a menu from 2009—or could not be dated at all due to the lack of a year, as was the case with several photos from social media. Of the 97 receipts submitted from the restaurant in Torfhaus, only about one-third were from the relevant period. And only a handful of these receipts listed dishes whose names contained parts of the trademark—specifically, five servings of “Wienerwald Eisbecher,” three “Wienerwald Schnitzel,” and four “Wienerwald Hell.” The Chamber did not consider these few receipts from a single restaurant sufficient to conclude that there was serious, economically relevant use of the trademark for the products in question.
Even the affidavits from the managing director and the former franchisor were of no help. While statements from individuals who are themselves part of the company are generally considered evidence, established case law holds that they carry weight only if they are corroborated by independent documentation. That was precisely what was missing in this case. The trademark owner had not submitted sufficient evidence regarding the extent of the trademark’s use in connection with the food and beverages in question.
For comparison, Wienerwald cited an earlier decision regarding the EASYJET trademark. In that decision, similar figures regarding food sales had been accepted. The Chamber noted, however, that the figures in that case had been supported by independent sources such as press reports. This was not the case with Wienerwald.
Practical Tips
Anyone who wishes to protect a trademark for both their business and individual products should systematically collect evidence covering the five-year period of use. This evidence should be traceable to specific products, such as dated receipts, invoices, or sales statistics. Franchisors and licensors should contractually require their partners to record and retain such product-related sales data, as statements from managing directors or other individuals alone are not sufficient under case law. Promotional materials, menus, and photos should always be dated, as undated material carries little weight in case of doubt. Anyone using a single trademark for both the business and its products should have it reviewed early on to determine whether an additional trademark specifically for certain products would be advisable, in order to reduce the risk of partial cancellation.
Conclusion
The decision clearly shows that a well-established trademark in the restaurant industry is no guarantee that protection for individual food and beverage items will also be maintained. The Chamber’s reasoning is understandable: the mere fact of serving guests under a certain name does not in itself indicate whether the dishes served are perceived as trademarked products.
For franchisors who do not regularly offer goods themselves—but rather rely on their franchisees to do so—this decision demonstrates that they must continuously ensure they have adequate evidence of use for goods and services in order to avoid losing a key component of the franchise concept: the trademark.
We are happy to
advise you about
Trademark law!
