EGC: No trade mark protection for Coca-Cola bottles without fluting

On 24 February 2016, the General Court of the European Union (EGC) decided that the Coca-Cola bottle registered as a 3D trade mark is not eligible for registration without the famous fluting. The court thereby confirmed the decision of the European Union Intellectual Property Office, EUIPO (Case T-411/14).

The Coca-Cola Company, owner of many 3D marks, wanted to register the bottle shape shown below as a European Union trade mark for bottles made of metal, glass and plastic: 
    

The EUIPO rejected the application and the subsequent appeal since it believed that the contour bottle for which registration was sought without typical fluting was devoid of distinctive character within the meaning of Article 7(1)(b) and Article 7(3) of the EU Trade Mark Regulation.

The EUIPO found that the bottle applied for did not display any features which significantly stood out from other shapes of goods on the market. It said that an average consumer, who is not particularly attentive and “was likely to have an imperfect recollection of trade-marked products”, would not regard the bottle shape applied for as a natural development of the emblematic contour bottle with fluting. Therefore the bottle applied for would not enable the consumer to distinguish Coca-Cola’s goods from those of other undertakings.

In addition, the EUIPO stated that the surveys, turnover and sales figures provided by Coca-Cola and the advertising material submitted were not sufficient to prove that the trade mark applied for had acquired distinctive character as a result of use.

The EGC has now rejected the action for repeal of the EUIPO’s decision in full. The court confirmed the EUIPO’s opinion and found that the trade mark applied for, when seen as a whole, consisted of nothing more than a sum of typical parts, all of which were devoid of distinctive character. It said that the mark applied for was just a variant of the shape of a bottle which did not enable the consumer to distinguish Coca-Cola’s goods from those of other undertakings. In relation to distinctive character acquired through use, the EGC decided that this is also possible in the case of a 3D mark if it is used in conjunction with a word or figurative mark. However, it said that in the case to be decided it was not possible to prove on the basis of the evidence submitted that the bottle shape applied for would be perceived as an indication of the origin of the goods from the point of view of a significant part of the relevant public throughout the EU.

The EGC’s decision shows once again how important it is to prove acquired distinctive character when registering comparatively simple shapes as 3D marks. The proof must relate to a significant part of the relevant public in the entire territory of the European Union to be able to be recognised.