The First Section of the Council of State, in its analysis of the appeal filed against a judgment of the Superintendency of Industry and Commerce that denied the registration of the trademark “L. CASEI DEFENSIS” for the identification of products such as milk or powdered milk (included in international class 29 of NIZA), ruled on the plaintiff's arguments regarding the fact that the plaintiff company holds the title to an invention patent with a specific denomination, and pointed out that, as established by the Court of Justice of the Andean Community, the holder of an industrial property right of this nature cannot register said denomination as a trademark, since it must be analyzed to determine whether it is registrable.
Likewise, it highlighted that it is not appropriate to register the name of a bacterium commonly present in probiotic dairy products, insofar as such registration would grant the applicant company a monopoly over the expression, thereby preventing other entrepreneurs in the same sector from producing, manufacturing, distributing, and marketing products containing that bacterium.
Finally, it reiterated that distinctiveness is what makes a sign particular, singular, and gives it identity in the market with respect to the products or services it covers, so that consumers can perfectly identify them. It also recalled that distinctiveness is an essential feature that every sign must meet to be registered as a trademark and is a fundamental requirement for the trademark to fulfill its role of indicating the commercial origin, including the quality of the product or service, thereby avoiding confusion or association among consumers.