Case T‑411/14
The Coca-Cola Company
v
Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)
(Community trade mark — Application for three-dimensional Community trade mark — Shape of a contour bottle without fluting — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — No distinctive character acquired through use — Article 7(3) of Regulation No 207/2009)
Summary — Judgment of the General Court (Eighth Chamber), 24 February 2016
1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment
(Council Regulation No 207/2009, Art. 7(1)(b))
2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of a contour bottle without fluting
(Council Regulation No 207/2009, Art. 7(1)(b))
3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Criteria for assessment
(Council Regulation No 207/2009, Art. 7(1)(b), and (3))
4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Distinctive character acquired through use — Mark devoid of distinctive character in part of the Union — Acquisition of distinctive character in that same part
(Council Regulation No 207/2009, Art. 7(1)(b), and (3))
5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Distinctive character not acquired through use — Three-dimensional mark constituted by the shape of a contour bottle without fluting
(Council Regulation No 207/2009, Art. 7(1)(b), and (3))
1. See the text of the decision.
(see paras 35-39)
2. A three-dimensional trade mark consisting of the shape of a contour bottle without fluting, with a bulging centrepiece and a top section which tapers upwards like a funnel and bulges slightly at the neck, registration of which is sought in respect of ‘Goods of common metal not included in other classes; metallic bottles’ within Class 6 of the Nice Arrangement, in respect of ‘Household or kitchen utensils and containers; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes; glass and plastic bottles’ within Class 21 of the said Arrangement, and in respect of ‘Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ within Class 32 of the said Arrangement, is devoid of distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark. The mark applied for is characterised by its shape which has a curved silhouette. However, that shape represents nothing more than the sum of the parts of the mark applied for, that is to say, a bottle like the majority of bottles on the market. Such a shape is indeed likely to be commonly used in the trade of the goods covered by the trade mark application. It follows that the manner in which the components of the composite trade mark at issue here are combined is not capable of giving it distinctive character either. The mark applied for is thus a mere variant of the shape and packaging of the goods concerned which will not enable the average consumer to distinguish the goods in question from those of other undertakings.
(see paras 46, 47, 50, 51)
3. See the text of the decision.
(see paras 66-72)
4. See the text of the decision.
(see paras 77, 78)
5. See the text of the decision.
(see paras 80-87)