An application to register the Coca-Cola bottle as a trade mark has been rejected by the General Court of the EU.
Last week the General Court of the EU issued a decision refusing registered trade mark protection for Coca-Cola’s bottle shape. The trade mark applied for was this:
Coca-Cola applied to register the bottle shape as a European Trade Mark in December 2011. The European Trade Mark Office rejected the application on the basis that the trade mark did not have any distinctive character in relation to the products Coca-Cola had tried to protect (including plastic bottles, household goods, and non-alcoholic beverages). The Examiner felt that the Coca-Cola bottle was not significantly different from other basic bottle shapes for the same goods.
Coca-Cola tried to convince the Examiner that the trade mark had become distinctive because of the use they had made of the bottle before the trade mark application was filed. They submitted evidence from customer surveys conducted in 10 European countries, as well as sales figures, advertising material, website extracts, photos, pop art and third party publications. The trade mark Examiner, the Second Board of Appeal, and now the General Court, decided that this was not sufficient evidence to prove that the bottle shape had become distinctive. Criticism of the evidence included that a lot of the material was not from the EU, and that as a bottle shape (and any other 3D trade mark) has no language barrier, that evidence of acquired distinctiveness must show that the mark has become well known across all 28 countries of the EU.
Coca-Cola do have registered trade mark protection for their more distinctive and iconic “contour bottle”. They can still appeal the decision to the Court of Justice of the European Union.
When applying for trade mark protection for 3D marks, as well as any other type of trade mark, it is important to consider whether the consumer of the goods will see your trade mark as a badge of origin, or if it simply blends into the background. In this case, I think the decision is the right one. When looking at the picture of the trade mark applied for, I’m not sure I would be certain that it was a Coca-Cola bottle and not from any other company. In the absence of sufficient evidence that the public have been educated to see that shape as a trade mark, it seems that the right decision has been issued.
Case reference T-411/14. Press release from the General Court here http://curia.europa.eu/jcms/upload/docs/application/pdf/2016-02/cp160016en.pdf
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