THE PACKAGING CASE THAT NEARLY SLIPPED AWAY ...

February was a long time ago, but it was during that cold dark month that the European Court of Justice (ECJ) gave its ruling in Case C-218/01 Henkel KGaA v Deutsches Patent- und Markenamt. At the time, there was no official English translation and the IPKat, having tired of waiting for it, later forgot all about it. Well, it's here now. Sadly the ECJ website has still not managed to post an English translation (the court's ruling is available in just nine of the EU's 25 languages, while the Advocate General's Opinion is available in a mere eight). However, the English version is hiding here on Eur-Lex. This page contains a cute little paradox: by clicking the icon for "more information" you actually get less information.

In short, Henkel applied to register as a German trade mark for liquid wool detergent, the colour and shape of a three-dimensional bottle, complete with neck and stopper. The German Trade Mark Registry said "no you can't -- the mark doesn't tell consumers anything about the origin of the product". Henkel appealed to the Bundespatentgericht, which thought the mark descriptive as well as functional. That court however referred a raft of questions to the ECJ for a preliminary ruling. Most of these questions run in parallel with the questions considered by that court in the various Procter & Gamble and Henkel cases that the ECJ has ruled on this summer, on appeals relating to Community trade mark (CTM) applications. However, one extra point made here by the ECJ was that, when considering distinctiveness of an applicant's mark in the context of an application to register a national mark (i.e. not a pan-European CTM), you only have to consider the conditions in the country in which the application is made, not the EU as a whole.

ECJ rulings in the Procter and Gamble and Henkel 3D mark cases here and here (the 3D mark cases are at the top of the lists).
The best way to wash woollies: a domestic economist explains
Another way of washing woollies here