The European Court of Justice's Court of First Instance has just ruled this morning in Case T-393/02 Henkel v OHIM, an appeal against the refusal of the Office for Harmonisation in the Internal Market to allw Henkel's application to register, as a Community trade mark for soaps, gels etc, , a three-dimensional mark consisting of the shape of a white and transparent bottle. On this occasion the appeal was successful. As the CFI said (at paragraphs 47-48 of its decision):
"47 ... [T]he three-dimensional mark applied for is unusual and capable of enabling the products in question to be distinguished from those having a different commercial origin. That position is supported by the registration by the applicant of a three-dimensional mark having an identical shape to that of the mark applied for in the present case, in 11 Member States.Having seen the illustration of the bottle which features on the ECJ's website, the IPKat wholeheartedly agrees: the bottle in question is quite a memorable, even in the absence of word marks, logos and other material that might also serve to distinguish it from the bottles of other traders in respect of the same goods.
48 It follows from all the above considerations, and without there being any need to reach a decision on the other arguments put forward by the applicant, that the Board of Appeal was wrong to hold that the mark applied for was devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94".
Historical bottles here
Best British bottles here
White bottles here; blue bottles here and here