On May 2, 2009, the European Court of First Instance had to decide on the registrability of three-dimensional trademarks in two cases.

In the first case (T-449/07), the plaintiff had applied for a three-dimensional CTM in the form of an arrangement of five separate sausages, the ends of which are linked. The application was, among others, for meat, poultry and game products and other food products. In principle, a product design as such can be protected by trademark law. In that regard, the criteria for assessing the distinctive character of three-dimensional marks consisting of the shape of a product are no different from those applicable to other trademark categories. However, average consumers will often not view mere product shapes as indicators of origin, and it is therefore often more difficult to establish distinctiveness in relation to such a three dimensional mark than in relation to a word or figurative mark.

The court stated that sausages are widespread, everyday consumer goods in the European Union. Although the shape applied for differs from the classic shape of sausages, the average consumer will not perceive the shape applied for as an indication of the commercial origin of those goods. Though the shape applied for is similar to the shape of a pretzel, it is nevertheless the case that the average consumer will view the shape applied for merely as a collection of five sausages linked to one another.

Also, the use of a novel form of presenting sausages as a particular marketing concept is a factor that cannot have any bearing on the assessment of the registrability of the mark. Therefore, according to the court, the shape applied for is devoid of distinctive character within the meaning of Article 7(1)(b) of the Community Trademark Regulation.

The court also denied the registrability of a trademark for perfumes in the shape of a cylindrical, elongated and transparent perfume spray bottle (T-104/08). The court stated that the more the shape applied for comes close to the shape in which the product most likely appears, the more likely it is that this shape lacks distinctive character. A “variation” of the common shape of a product type does not suffice for distinctiveness, according to the court. Although the court admitted that it is easier to prove the distinctive character of a perfume packaging in comparison with other three-dimensional trademarks, the same criteria for the assessment of distinctiveness are still to be applied. The court decided that the shape applied for, which is quite plain, is, taken as a whole, quite common and is often used especially for perfume tester bottles. The same, according to the court, applies to the combination of the parts of the shape.

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