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4 October 2018Trademarks

EU General Court upholds amphora 3D trademark appeal

The EU General Court yesterday reversed a trademark decision by the European Union Intellectual Property Office (EUIPO), resulting in a win for German food producer Wajos.

Wajos had applied to register a figurative mark with the EUIPO in 2015, covering a range of food stuffs such as oils, fruits, tea, and beers, in classes 29, 30, 32, and 33.

The 3D trademark depicted an amphora-shaped rectangle with a more pronounced bulge than usual. Amphoras, which were historically used to store and transport vessels for olives, oil, and wine, are a particular type of container.

In 2016, an examiner at the EUIPO rejected the application.

On appeal, the First Board of Appeal affirmed the examiner’s ruling as it found the applied-for mark to be devoid of distinctive character.

The board said that the mark did not allow the average consumer to distinguish Wajos’s products from those of other producers.

At the General Court, Wajos said that its products are gourmet and expensive, attracting a better informed and more attentive consumer than usual. These consumers would therefore pay more attention and would recognise the applied-for mark as an indication of commercial origin, Wajos added.

Despite reversing the earlier decision, the General Court did agree with the board’s assessment of the products. It said they are general products for everyday consumption, even though they are offered at a higher price than comparative goods, and the bulk of the consumer population has an average level of attention.

Wajos also claimed that the board had wrongly held that the applied-for mark lacks distinctiveness.

In response, the EUIPO said at the General Court that the bulge, which characterised the applied-for mark, has the functional objective of supporting the container and is not capable of distinguishing the mark from comparable forms in the industry.

However, “such a characteristic also brings an aesthetic value to the mark applied for”, the court said yesterday.

The General Court noted that the food market is characterised by strong competition and many producers use packaging design to attract consumers’ attention.

As such, consumers are “fully able” to understand that the shape of product packaging can be an indication of the product’s commercial origin, the court said.

The court explained that, due to the “exceptional nature” of the industry, the presentation of goods through the applied-for mark could indicate the commercial origin of the products concerned.

Taken as a whole, the applied-for mark contains a combination of features that distinguish it from other comparable forms on the market covering the goods concerned, the court said.

“The bulge of the mark applied for is unusual in the sectors concerned,” according to the court.

Therefore, contrary to the board’s assessment, the court found that the applied-for mark does have the minimum required distinctiveness to be registered.

The court upheld Wajos’s appeal, set aside the EUIPO’s decision, and ordered the EUIPO to pay costs.

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Trademarks
6 July 2023   Court dismisses food and drink company’s appeal for a 3D mark on functionality grounds | Minor arbitrary elements in a mark do not undermine such grounds, it said.