|The first 3D cat|
At the application level, OHIM examiners are the first to raise an array of absolute grounds listed at Article 7(1) CTMR. These refusals are usually confirmed by the Board of Appeal and the EU Courts -- on the basis that the applied-for marks consisting of the shape of product cannot be registered because they are necessary to obtain a technical result, for example see the Lego brick; consist of shape which gives substantial value to the goods as for Bang & Olufsen, or the all-time favourite ground for refusal -- the shape mark lacks distinctive character , as was the case for chocolate confectioneries.
In its impetus to reject any attempt to protect packaging with Community trade mark rights, the Court of Justice momentarily slowed down and censured the General Court’s findings in the Freixenet Cava bottle cases, which ultimately impeded registration of any mark consisting of the packaging of the goods itself. According to the General Court, the decisive element revealing the origin of the goods to consumers was the label attached to the bottle rather than the form of the bottle or its appearance.The CJEU annulled the GC’s judgment and held that
Such an assessment means that marks consisting of the appearance of the packaging of the product itself that do not contain an inscription or a word element would be excluded automatically from the protection that may be conferred by the CTMR.In addition, even if bottles are never sold without labels or any other kind of marking- indeed beverages always require a label to be affixed for consumer protection obligations- this does not mean the consumer cannot identify two marks consisting of the bottle shape and the word mark (think Coca-Cola!)
Does the Voss
|...from the norms and customs of the sector?|
The Preamble of the EU trade mark Directive proposal expressly mentions the necessary link between “trade mark protection and innovation”. However, without any trade mark rights to enforce against competitors, the producer of a distinctive 3D form cannot prevent competitors from using that shape, thereby rendering any promotional/marketing efforts by the owner of the unique product shape to distinguish their 3D form ineffective, diluting the chances that consumers will ultimately recognize that form as a designation of origin, and overall dissuading innovative companies from investing and protecting their original packaging under EU law.
Or the Court should at least clarify the test of the norms and customs of the sector-which may be too subjective today -- to qualify as a legal test to allow registration of 3D rights.
3D cat gifs here and Puss in Boots in Blu-Ray 3D
My life as 3D blog. No special glasses required