In this morning's second Court of First Instance ruling, Case T-360/03 Frischpack GmbH v OHIM, the CFI dismissed the applicant's appeal against the refusal of the Board of Appeal to allow the registration as a Community trade mark, for goods in Class 29 (sliced cheese), a three-dimensional mark consisting of a cheese box for holding sliced cheese. The Board of Appeal had no difficulty concluding that the mark was not distinctive, considering that
"... the average consumer would see in the shape claimed for the goods stated in the application only an ordinary flat packaging. The box for which registration is sought did not contain any element ‘exceptionally special, specific or unusual on the foodstuffs market’ which make it possible to clearly distinguish it from other shapes existing on that market. It was only a ‘slight and unremarkable variation on the typical shape’ ... [A]lthough the mark applied for is the subject of a complex description, only a considerable analytical effort makes it possible to recognise all the characteristics listed in that description. The average consumer would not, however, carry out such a complex and intensive analysis of the subject".
The CFI agreed.

Frischpack also argued that, while the general cheese-eating public might not view their cheese box as being distinctive in respect of cheese, the company was seeking registration in respect of the sale of sliced cheese to the trade, a much narrower and more discerning market and one which would regard the aplied-for sign as being distinctive. CFI refused to accept this. As the court said (at paragraphs 41 to 43):
"41 ... [A]t no time during the administrative proceedings before OHIM did the applicant plead the fact that the slices of cheese contained in the packaging for which registration is sought were intended solely to be sold wholesale to the food trade. Indeed, in its decision of 11 February 2003, the OHIM examiner had already assessed the distinctive character of the packaging in question by taking account of the presumed expectation of the average consumer and the applicant did not dispute that in its action before the Board of Appeal.

42 Under Article 74(2) of Regulation No 40/94, since OHIM may disregard facts or evidence which are not submitted in due time by the parties concerned, the Board of Appeal could reasonably take the view, in the light of the information submitted by the applicant, that the relevant public was the average consumer.

43 The Board of Appeal was therefore right in assessing the distinctive character of the packaging in question by taking account of the presumed expectation of the average consumer, averagely informed and reasonably attentive and circumspect. Yet the applicant does not claim that the mark for which it seeks registration has distinctive character in the light of the presumed expectations of the average consumer".
The IPKat wonders whether a further application to register the mark in respect only of cheese sold to the trade might be successful: this has happened before when the generally unregistrable laudatory epithet IDEAL was not barred from registration in respect of rubber stamps and ink pads for sale to the trade (see Case R-1163/2000-1). His fast-learning feline friend Merpel adds: "I notice that the argument was only about distinctiveness, not functionality. That must be because functionality under Articles 7(1)(c) and 7(1)(e) of the CTM Regulation is only an issue where the product shape is exclusively descriptive or functional, which -- from the picture of the mark in the CFI's report -- doesn't appear to be the case here".

Cheese box masks here
Mouse and cheese box here
Far-out cheese box here
FRISCHPACK CHEESED OFF FRISCHPACK CHEESED OFF Reviewed by Jeremy on Wednesday, November 24, 2004 Rating: 5


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