1. Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, under which marks which are devoid of any distinctive character are to be refused registration, draws no distinction between different categories of mark. Accordingly, it is not appropriate to apply more stringent criteria or impose stricter requirements when assessing the distinctiveness of three-dimensional marks comprising the shape of the goods themselves than are applied or imposed in the case of other categories of mark. In order to assess a mark’s distinctiveness, it is necessary to take account of all relevant elements linked to the specific circumstances of the case and one such element is the fact that it cannot be excluded that the nature of the mark in respect of which registration is sought might influence the perception which the targeted public will have of the mark.
The distinctiveness requirements applicable to three-dimensional marks comprising the shape of the goods cannot be less strict than those applicable to word marks, since consumers are more accustomed to directing their attention to the latter.
2. The three-dimensional marks consisting of cylindrical torch shapes in respect of which registration was sought for apparatus for lighting and accessories for such apparatus are devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since a cylinder is a common shape for a torch which corresponds to shapes commonly used by other torch manufacturers on the market and thus, rather than enabling the product to be differentiated and linked to a specific commercial source, gives the consumer an indication as to the nature of the product. Moreover, the aesthetic qualities and the unusually original design of the shapes claimed as marks appear, as a result of those features, as variants of a common torch shape rather than as shapes capable of differentiating the goods and indicating, on their own, a given commercial origin.
Citations:
T-88/00, [2002] EUECJ T-88/00
Links:
Jurisdiction:
European
European, Intellectual Property
Updated: 06 June 2022; Ref: scu.173812