3D Trademarks and distinctiveness

[25/04/2022]

In a judgement of 30 March 2022, (T-264/21, EU:T:2022:193, Etablissement Amra / EUIPO and eXpresio, estudio creativo, SL), the General Court of the European Union clarifies the principles of the examination of the functionality provided for in Article 7, § 1 er, e, ii, of Regulation 2017/1001.

In this case, the EUIPO had held the three-dimensional mark of "rebound shoe" filed by eXpresio in 2017 was distinctive due to the presence of essential verbal and figurative elements, despite the technical function of the shape.

The Court considers on the contrary that on the one hand, the word and device elements are minor and on the other hand, that the shape of the shoe is "the most important part in the overall impression produced by the sign" and that the same is exclusively technical. It therefore overturned EUIPO's decision.

This decision confirms that the assessment of the distinctive character of 3D marks is particularly strict.

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