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Sunday, 7 December 2003


The IPKat brings you a case on the registrability of 3-D packaging from the CFI. Nestlé applied to register the shape of a three-dimensional bottle with wavy grooves and an upper-part that was bobbin-shaped as a Community trade mark for various non-alcoholic beverages. The registration was rejected on grounds of lack on distinctiveness under Article 7(1)(b) by both the examiner and the Board of Appeal. Nestlé appealed to the CFI, arguing that the Board had carried out the distinctiveness test incorrectly.

The CFI annulled the Board of Appeal’s decision. The Board of Appeal had been correct in comparing the bottle in question to other bottles and asking whether it was classic in nature because the sign claimed consisted of the shape of the packaging of the product in question, rather than the product itself, since beverages cannot be sold without packaging.

As a general principle though, the average consumer was capable of perceiving the shape of the packaging of goods as an indication of their commercial origin in as far as that shape presented characteristics that could hold his attention since certain operators had sought to use the packaging of their goods to differentiate their goods from the competition and to attract public attention. Furthermore, there was no justification for applying different distinctiveness criteria for three-dimensional marks, compared to other types of marks under Article 7(1)(b).

In this case, the Board had assessed the distinctiveness of the bottle incorrectly as it examined specific elements of presentation individually, rather than the overall impression produced by the appearance of the bottle. Although the bottle’s bobbin shape and oblique horizontal grooves were features of numerous bottles available on the market, the way the features were put together was not commonplace. The combination of features gave the bottle an appearance that was capable of holding the attention of the public concerned and enabling the public to distinguish goods covered by that registration from those with a different commercial origin. The Board had also incorrectly misinterpreted Article 7(1)(b) by failing to realise that a minimum level of distinctive character renders the Article 7(1)(b) objection inapplicable.

The IPKat says that this case appears to make it pretty easy to show that the shape of a bottle is distinctive. Just showing that your bottle is different from other traders’ bottles would seem to be adequate. This could give rise to a multiplicity of bottle-shape registrations, though presumably the more registrations like this there are, the narrower their scope of protection will be.

Bottles that aren’t devoid of distinctive character here, here and here

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