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Improvement in the assessment of the distinctive character of three-dimensional marks

16 October 2018

In 2015, the EU three-dimensional trademark registration application for a bottle, filed by the German company Wajos, particularly in relation with beverages, was refused by the EUIPO and the refusal was by the Board of Appeal for lack of distinctive character.

The Court, hearing the appeal filed by Wajos, considered that although the elements of the mark are not individually distinctive, their combination is sufficiently distinctive in relation to the goods filed, in the following terms: “a sign consisting of a combination of elements, each of which is devoid of any distinctive character, can be distinctive provided that concrete evidence, such as, in particular, the way in which the various elements are combined, indicates that the sign is greater than the mere sum of its constituent parts”.

This decision should have an impact on the assessment of the distinctive character of three-dimensional marks and open up new perspectives for applicants.

We naturally remain at your entire disposal for any additional information.

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