Distinctive character of 3D triangular trademarks


Michiel Rijsdijk

On January 5, 2010, 10 years after Mars started an action against the three-dimensional trademark registration of Kraft, the Supreme Court of the Netherlands gave its final judgment.

Mars claimed the nullity of the threedimensional trademark for a triangular box for chocolates and alternatively a non-infringement declaration of that trademark with its product. Kraft’s counterclaim was based on trademark infringement by Mars.

The nullity claim was based on Article 3 (1) b of the Trademark Directive No. 89/104, which states that a trademark can be declared void if it lacks distinctive character. The district court rejected both of Mars’ claims and ordered it to cease and desist the infringement of Kraft’s trademark.

Mars appealed against this decision. The court of appeal stated that with respect to the nullity claim, it must be considered whether the sign is able to distinguish the origin of the goods from the goods of other companies. It must be considered too that the perception of three-dimensional marks differs from the perception of word and figurative marks, since the public is not used to identifying the origin of goods from their shape.

3D trademarks, Mars, Kraft