By decision issued on May, 7, 2015 (Caso C-445/13), the Court of Justice of the European Union has entirely confirmed the decision issued by the General Court of the European Union by which that Court held that the three dimensional trademark consisting of the shape of a cylindrical bottle had no distinctive character. 

The matter concerns the validity as a trademark of the three-dimensional shape of a cylindrical bottle transparent and of a cover (not transparent) of the same diameter of the bottle.

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On this point, the Court of Justice established, according to a settled case-law, that only a trademark that departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character.

That distinctive character must be assessed, first, by reference to the goods and services in respect of which registration is sought and, second, by reference to the perception of the relevant public.

The Court also stated that the criteria for assessing the distinctive character of three-dimensional trademarks are no different from those applicable to other categories of trademarks. However, for the purpose of applying those criteria, the perception of the average consumer is not necessarily the same, due to the fact that it could therefore prove more difficult for the consumer to establish distinctive character in relation to three-dimensional trademarks rather than that of a denominative or a figurative trademark.

In those circumstances, the more closely the shape for which the registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character.

It follows that, according to the Court decision, where a three-dimensional trademark is constituted by the shape of the product, the mere fact that that shape is a “variant” of a common shape of that type of product is not sufficient to establish that the trademark is not devoid of any distinctive character. It must always be determined whether such a trademark permits the average consumer of that product, who is reasonably well informed and reasonably observant, to distinguish the product concerned from those of other undertakings.

The Court of justice, confirming the decision of the General Court, also argued that the contested trademark, as perceived by the relevant public, is not capable of individualising the goods covered by that trademark and distinguishing them from those which have a different commercial origin.

The Court concluded that the manner in which the components of the trademark at issue are combined is also not capable of giving it distinctive character.