Keywords
Summary

Keywords

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Mark consisting of the specific appearance of the surface of the packaging of a liquid product

(Council Regulation No 40/94, Art. 7(1)(b))

Summary

The criteria for assessing the distinctive character of three-dimensional trade marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark.

However, when those criteria are applied, account must be taken of the fact that the perception of the average consumer is not necessarily the same in relation to a three-dimensional mark consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign independent of the appearance of the products it designates. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging when there is no graphic or word element, and it could therefore prove more difficult to establish distinctive character in relation to such a three-dimensional mark than in relation to a word or figurative mark.

In those circumstances, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

That case-law, developed in relation to three-dimensional trade marks consisting of the appearance of the product itself or the packaging of goods, such as liquids, which are packaged in trade for reasons linked to the very nature of the product, also applies when the trade mark for which registration is sought is an ‘other’ mark consisting of the specific appearance of the surface of the packaging of a liquid product. In such a case, the mark likewise does not consist of a sign independent of the appearance of the necessary packaging of the products it designates.

(see paras 45-48)