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22 February 2018Trademarks

Jägermeister’s glass design shot down by AG

An advocate general (AG) has shot down Jägermeister’s attempt to register a shot glass design featuring images of the brand’s alcohol bottles, backing a decision of the EU General Court.

AG Juliane Kokott delivered her opinion in the Court of Justice of the European Union (CJEU) today, February 22.

In April 2015 Mast-Jägermeister filed to register a design for shot glasses with the European Union Intellectual Property Office (EUIPO) under international class 7 for ‘beakers’. The design depicted images of Jägermeister bottles.

The examiner rejected the design. As the representations included beakers and well-known bottles of the drink, the examiner said it was unclear what Jägermeister sought to protect. The examiner recommended that the company file multiple applications for the beaker and the bottle.

In response Jägermeister claimed no protection was sought for the bottles and amended the design description as “drinking beakers as receptacles for a bottle which is part of those beakers”.

The EUIPO again rejected the design, as the amendments did not remedy the “defects” noted. As such it said the design application submitted could not be regarded as an application for a Community design as it failed to meet the criteria given, so no date of filing could be attributed.

The EU General Court upheld the EUIPO’s decision in February 2017. It said it was not possible to decipher whether protection was sought for the beaker, the bottle, or a combination.

In addition the court noted that Jägermeister had been given the opportunity to remedy the issues with the original application but failed to do so in the allotted time frame, so the finding that no date of filing could be attributed was correct.

The liquor company appealed to the CJEU. It argued that the beaker together with the bottles is not intended to form the subject matter of the design and is not therefore subject to the “technical requirements” of being unequivocal.

Both the EUIPO and General Court argued that the form of representation failed to meet the “technical quality” necessary in the requirements of EU design regulations, which includes the design being unequivocal in terms of its content.

The CJEU was therefore asked to clarify whether the representation provided by Jägermeister satisfied the requirements of an application.

Kokott agreed with the General Court and the EUIPO that “the design in the application must not only satisfy certain technical requirements, but also be unequivocal in terms of its content”.

She said Jägermeister’s argument is “unconvincing” as “the concept of representation also encompasses the idea of being able to distinguish the content of design”.

For the purposes of affording a date of filing the design must be sufficiently precise.

“If the representation were equivocal it would be unclear as to which design was actually being filed,” Kokott added.

Kokott recommended that the CJEU dismiss the appeal and order Jägermeister to pay costs.

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5 July 2018   The Court of Justice of the European Union rejected Mast-Jägermeister’s attempt to register a shot glass design today.