Bang & Olufsen A/S (B&O) has successfully registered the shape of one of its hi-fi speakers as a trade mark. B&O had applied for a three dimensional community trade mark for tall, slim, stand-alone, pencil-shaped loudspeakers. The Office of Harmonization for the Internal Market (OHIM) rejected the application, holding that it was devoid of any distinctive character and that there was insufficient evidence of distinctiveness acquired through use according to Article 7(1)(b) and (c) of the Community Trade Mark Regulation 40/94 respectively. B&O appealed but the appeal was also dismissed. B&O then sought an annulment of the judgment of the decision of the Board of Appeal from the Court of First Instance (CFI).

According to the CFI, there are two criteria for assessing the distinctive character of a trade mark: i) a reference to the goods or services for which a mark has been applied; and ii) a reference to the perception of the well informed, reasonably observant and circumspect average consumers towards the company’s goods and services. The “average consumers” in this case had a higher level of attention than average consumers in most cases as the speakers were top-of-the range, high value products marketed in an exclusive way. Based on the evidence, the CFI found that (i) the average consumers applied a particularly high level of attention when purchasing the goods; (ii) the mark applied was a striking design that could not be considered to be common; and (iii) the mark departed significantly from the usual designs and signs in the sector concerned. The Court concluded that, with such high attention exercised by these average consumers and having regard to the overall aesthetic result, the unique character of the pencilshaped mark could be recognised as an indication of the commercial origin of the goods. The mark applied was distinctive, and the decision of the Board of Appeal was annulled.

It should be noted that elements such as the degree of care of consumers and the type of goods or services for which the mark is sought to be registered, are important considerations as to whether a mark is registrable. In addition, the case highlights that anyone who wishes to register a community trade mark should provide enough auxillary information to maximise the probability that the application in a case like this could succeed