

for Harmonisation in the Internal Market on Wednesday 23 May 2007. P&G applied to register as Community trade marks no fewer than nine three-dimensional shapes, each consisting of a thick rectangular white washing tablet bearing a coloured floral design (all nine are illustrated here). The applications were dismissed, as




* the well-established criteria for assessing the distinctive character of three-dimensional trade marks consisting of the appearance of the product itself were no different from those applicable to any other category of trade mark.The IPKat is not surprised at this decision. He does however note with pleasure the following paragraph:
* Even so, when applying those criteria, OHIM has to take account of the fact that the perception of the average consumer is not necessarily the same in relation to a three-dimensional mark consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent of the appearance of the products it denotes.* Since the average consumer is not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, it could prove harder to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark. This being so, only a mark which departs significantly from the norm or customs of the sector and thus fulfils its essential function of indicating origin is not devoid of any distinctive character.
* In this case, P&G's evidence was insufficient to establish that the average consumer paid particular attention to the appearance of the washing tablet or that he was accustomed to perceiving it as an indication of its commercial origin.
"... as regards the criticism which the applicant levels at the findings relating to the need to keep basic geometric forms available, contained in seven of the nine contested decisions ... it must be observed that that argument, while being undoubtedly unfounded in law, is mentioned explicitly in the decisions only for the sake of completeness and therefore cannot justify annulment of those decisions" (para.89).

Hit-list of all Procter & Gamble litigation before the European Court of Justice here
More on tablets here
Keep taking the tablets ...
Reviewed by Jeremy
on
Friday, May 25, 2007
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