Three-dimensional mark for sweet treats devoid of distinctive character

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The EU General Court has upheld a decision of the OHIM Board of Appeal that a three-dimensional Community trade mark registered for desserts, ice creams, sorbets and yoghurts lacked distinctive character and had failed to acquire distinctive character through use. The Community Trade Mark Regulation [1] prohibits registration of trade marks which are devoid of distinctive character (Article 7(1)(b)).

In this case [2] the mark consisted of two glass goblet-shaped transparent containers in a cardboard outer casing open at the top and the sides. The mark was the three-dimensional shape of the packaging used for the products.

The key factor in the OHIM decision, upheld by the General Court, was that these were inexpensive everyday consumer products to which a consumer did not display a high level of attention. The mark did not depart significantly from what was standard in the sector and so could not be said to have distinctive character as it lacked any features to differentiate it from the marks of other products in the market for desserts. Whilst it is possible to overcome a lack of distinctiveness by showing evidence of distinctiveness acquired through use, the appellant had failed to do this.

The case is indicative of the difficulty of showing distinctiveness in products to which consumers do not show a high level of attention.

[1] 40/94/EC
[2] Giorgio Giorgis v OHIM, Case T-474/12