Keep taking the tablets ...

The Court of First Instance of the European Communities handed down its judgment in Joined Cases T-241/05, T-262/05 to T-264/05, T-346/05, T-347/05, T-29/06 to T-31/06 Procter & Gamble Company v Office
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 were P&G's appeals to the Board of Appeal. The latter found that (i) the level of attention paid by the average consumer to the shape and design of a washing tablet was not high, (ii) the combination of the shape, colours and design in respect of each tablet was a variation of the normal presentation of the product concerned which was not suitable for identifying that product as coming from a specific undertaking and that (iii) given the small amount of attention paid by the relevant consumer and the relative unsuitability of the combination to serve as a trade mark, the marks were devoid of any distinctive character. P&G then sought to annul those decisions in the Court of First Instance. According to P&G the goods were aimed at consumers doing their daily shopping and who would pay a high level of attention to the shape and size of the washing tablets. The company also maintained that the Board of Appeal had erred in its assessment of the overall impression produced by the combination of the shape, colours and design of each mark.

The Court of First Instance had little trouble in dismissing P&G's case. In the CFI's opinion

* 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.

* 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.

The IPKat is not surprised at this decision. He does however note with pleasure the following paragraph:

"... 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).

He adds, I had quite enough difficulty telling some of these tablet shapes from one another - though I suppose that wouldn't matter if they all belonged to the same trade mark owner anyway. Merpel says, what's the betting that there will be a further appeal? There's soooo much money at stake - and who would ever have given P&G a chance of getting BABY-DRY registered as a Community trade mark for disposable paper nappies/diapers if, having lost every hearing, they hadn't persisted in their appeal to the full ECJ?

Hit-list of all Procter & Gamble litigation before the European Court of Justice here
More on tablets here