By judgment of 3 October 2018 (T-313/17), the EU Court ruled on an interesting case concerning the distinctiveness of a three-dimensional trademark depicting the shape of a peculiar bottle.

These are the facts underlying the case. The german company Wajos GmbH filed an application for the registration of the three-dimensional trademark shown in the photo below, with reference to food products in classes 29, 30, 32, 33 of the Classification of Nice. The application was rejected and the decision was subsequently confirmed by the EUIPO Appeal Board. However, the EU General Court eventually overturned the case.

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The trademark at issue concerns the peculiar shape of a bottle, characterised by markedly different sizes between the upper and lower parts. In the opinion of the EUIPO Appeal Board, the bottle recalls the shape of a common container in the form of an amphora, already used in the food market, and would not allow the average consumer to distinguish Wajos products from those of the other companies. Moreover, the particular shape of the bottle would be merely functional, since the swelling of the upper part is designed to facilitate positioning on a support.

According to EUIPO, the relevant public would mostly identify with the general public of consumers of food products. Therefore, considering the average attention of the latter group, the relevant public would not be able to recognise the shape of the bottle as particularly distinctive and indicative of the origin of the product. As a consequence, in accordance with article 7.1 b) of EC Reg.  2009/207 (now EU Reg. 2017/1001 on EU trademarks), in the absence of distinctiveness, the trademark could not be registered.

First of all, Wajos claimed the individuation of the relevant public, arguing that this consists instead of a narrow circle of consumers of exclusive and expensive quality gourmet products, who buy from selected retailers. Therefore, such customers must be considered more prudent and would certainly appreciate the peculiarity of the container in comparison to other bottles on the market.

Wajos also claimed that the brand has distinctiveness, since the configuration of the registered bottle is not purely functional and, in any case, differs significantly from other shapes of food product containers already on the market to which the relevant public is used to.

The General Court reiterated that the distinctiveness must be assessed on the one hand in relation to products and services for which registration has been applied and, on the other hand, with respect to the perception of the relevant public. The Court accepted the EUIPO claim for the part in which it considered that the relevant public mostly identifies with average consumers, which are not particularly attentive, since the list of products for which registration has been applied includes products usually consumed in the food sector.

The General Court also considered that the average consumer is perfectly able to perceive the form of the packaging as an indication of the commercial origin of the same, as long as this form is sufficiently characteristic to attract their attention. In order to determine whether the shape of the bottle at issue can be perceived as an indication of the origin of the products, it is therefore necessary to analyse the overall impression raised by the bottle. In this regard, the General Court reiterated that a trademark consisting of a combination of elements, which when considered individually may lack distinctiveness, could be distinctive as a whole or as a result of the peculiar combination of these elements.

Hence, in this case, the General Court considered that the combination of the elements of the bottle at issue results in a shape which, taken together, can be easily memorised by the relevant public and which, furthermore, gives the container a particular appearance that, considering the overall aesthetic result, differentiate it from existing bottles on the food market. In particular, the general impression evoked by the bottle departs from the one of ancient amphoras, also because the latter are not usually made by glass. Moreover, even if the swelling of the upper part of the bottle could also have technical and functional aspects, the fact remains that the detail brings an aesthetic value to the trademark.

Consequently, the General Court considered that, even if in food sector consumers do not normally pay attention to the shape of the product or associate it with its origin, in this case the exceptional shape of the bottle (compared to the customs of the sector) makes the trademark at issue suitable to indicate the aforementioned commercial origin.

Therefore, the EUIPO appeal chamber’s denial of the right to register the shapemark, motivated by the lack of distinctiveness, was deemed unfounded by the General Court which annulled it, pointing out that for the purposes of a trademark’s registration, even minimal distinctiveness is sufficient.