Coca Cola is the latest company to come a cropper with shape trade marks in the EU.

The General Court of the EU recently had to consider a TM application to register the shape of the Coca Cola bottle. The mark in this case was described as the ‘contour bottle without fluting’, in other words the well-known Coke bottle but without the groove or fluting. The court refused to register the bottle shape for soft drinks, holding that it was neither inherently distinctive, nor distinctive through use.

Dealing with inherent distinctiveness, the court said that confusing thing that all Euro courts say about 3D marks, which is this: 3D marks are judged in exactly the same way as word marks, except that they’re actually judged differently, because consumers aren’t ‘in the habit of making assumptions about the origin of goods on the basis of their shape’, which means that only a 3Dmark that ‘departs significantly from the norms or customs of the sector’ is distinctive. The court added more for good measure: soft drinks are everyday consumer goods, so the level of consumer attention is low; the degree of freedom when designing bottles is not very high; and the mere fact that the soft drink market is a competitive one where it’s common for companies to use packaging as a distinguishing feature was not sufficient.

On the issue of acquired distinctiveness, the court accepted that a 3D mark can in certain circumstances become distinctive through use, even if that use has been in conjunction with a word mark. But you can’t show acquired distinctiveness simply by showing extensive sales. And when it comes to advertising figures, you need to be clear – in this case it wasn’t obvious whether the figures related to the bottle or the word mark, or the fluted or unfluted bottle, and they certainly didn’t show that people saw the bottle as an indication of commercial origin. As for the survey evidence that was filed, that wasn’t good enough because it wasn’t clear whether those surveyed had been shown the bottle with or without the fluting and, in any event, it only extended to 10 of 27 member states.

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