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Can a bottle be three-dimensional trademark?

Last March, we discussed the controversy of three-dimensional trademarks. Today, we are focusing on the recent controversy generated by the registration of the three-dimensional trademark owned by VOSS OF NORWAY ASA. It consists on a transparent cylindrical bottle with a gray cap. The referred application was cancelled.

The Court of Justice of the European Union confirmed the decision issued by the General Court, which upheld the cancellation action filed by a third party against such three-dimensional trademark on the basis of lack of distinctive character.

The decision of the General Court was based on two arguments considering the cancellation action:

  1. Drinks are usually sold in bottles, cans or other types of packaging with a label containing a distinctive word or figurative sign that serves to distinguish them from others in the market.
  2. All drinks are often sold in bottles that share common elements although they may have small differences in their respective appearance.

 

In this case, in relation to the first argument, VOSS OF NORWAY ASA did not provide arguments to convince the Court of Justice. (It should be considered also that the same bottle in dispute is being sold by VOSS OF NORWAY ASA with the corresponding label).

Regarding the second argument, the Court upheld the arguments of the General Court stating the shape of the bottle subject to be registered as three-dimensional trademark is not significantly different from the shape of other bottles used for other beverages. In this sense, the combination of non-distinctive elements “per se” do not constitute a distinctive three-dimensional trademark.

We will see how the OHIM guidelines concerning three-dimensional trademarks evolve. However, it seems that a three-dimensional trademark must comply with the same legal requirements of any other type of trademark. 


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