When a container first sold by Company A, whose shape is protected by a 3D trademark, is used by Company B to be refilled with that Company B’s product, should this be considered as a trademark infringement?
Furthermore, if the trademark of Company B is affixed to the container, which still bears the trademark of Company A, is the fact that Company A’s trademarks remain visible, relevant?
On July 14, 2011 the Court of Justice of the European Union (CJEU) gave its view for the first time on that situation (Case C-46/10, Viking Gas A/S v Kosan Gas A/S).
Until that decision, the usual answer given by the French courts to the first question was affirmative, the second question being irrelevant due to the registered trademark owned by Company A on the shape of the container itself.
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3d trademark, CJEU, gas bottles