Not distinctive enough: Coca-Cola was denied protection for its bottle shape in Europe.
BY CARL STEELE
PARTNER, HEAD OF TRADE MARKS FOR ASHFORDS LLP
Many well-known food and drink businesses look to secure, by way of registered trademarks, protection against competitors copying the “shapes” of the packaging in which their products are sold.
The problem is that registering the shapes of packaging as trademarks, let alone subsequently successfully enforcing those registrations against third party infringers, is not an easy task in Europe.
A recent case, involving Coca-Cola, highlights the typical problems that businesses face.
In summary, Coca-Cola attempted to register, as a community trademark, the 3D shape of one of their bottles in which they sell their world-famous drink.
When Coca-Cola appealed the case to the General Court of the European Union, the court held that the bottle shape was merely a variant of common bottle shapes used in the trade for the type of liquid goods in issue. Thus, the shape was not “inherently distinctive”. Further, in order for the shape of the bottle to have “acquired distinctive character”, it had to be proved that, at the date the trademark application was filed, a significant proportion of average consumers across the EU “perceived” the goods as originating from a particular business because of the shape of the bottle in which the goods were sold (as opposed to, for example, any other trademark which might also be present on the packaging for the goods, for example the name “Coca-Cola”).
Despite the fact that survey evidence had been filed in an attempt to show that a significant proportion of the relevant public recognised the bottle shape as indicating the trade source of the goods in question, the court held that Coca-Cola had failed to prove its case – in particular, it had only obtained survey evidence in ten of the 27 member states of the EU.
So, all in all, not exactly a “good news story” for brand owners. So what should they do now?
May I suggest the following five tips:
© FoodBev Media Ltd 2019
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