Coca-Cola was shut down by the European General Court in respect of its trade mark application for a (fairly ordinary looking) bottle shape trade mark that it filed all the way back in December 2011.
The EU Trade Mark Office initially rejected the application because it lacked distinctive character in respect of some of the claimed goods associated with the mark (like glass and plastic bottles). Coca-Cola argued that the shape of the bottle was distinctive and had become associated with Coca-Cola. The examiner was not convinced.
Coke appealed the decision, first to a Board of Appeal (where it was unsuccessful), then to the Court. The Court agreed with the Board of Appeal and the EU Trade Marks Office in respect of the lack of distinctive character of the bottle. Unlike Coke’s other bottle shape trademarks, this ‘contour bottle without fluting’ shape didn’t have any distinctive qualities that departed ‘significantly from the norms and customs of the sector’.
We tend to agree. It’s a pretty generic bottle shape – see for yourself.
Click here to view image
In addition, the Court found that survey evidence presented by Coke was not sufficient to prove that the trade mark had acquired distinctiveness in the market (though it didn’t agree with conclusions made by the Board of Appeal which questioned the reliability and independence of the surveys).
While shape trade marks are all the rage atm (read about Nestlé’s failed attempt in England to trade mark the shape of the Kit Kat ) a successful application requires a distinctive or unusual shape that sets it apart from what’s already in the market.