No trademark for Coca-Cola

A Coca-Cola bottle without fluting does not possess sufficient distinctive character vis-à-vis other bottles on the market and therefore cannot be registered as a three-dimensional mark. This follows from a judgment of the Court of Justice of the European Union (EuGH)

Coca Cola filed in 2011 for bottles made of metal, glass and plastic asthree-dimensional community trademarkapplied for. The shape of the mark was comparable to the typical, already well-known bottle shape of Coca-Cola, but lacked the fluting. The HABM rejected the application in March 2014 on the grounds that the applied-for mark lacked distinctive character for the goods claimed. The HABM did not follow Coca-Cola's argument that this constituted a natural further development of its famous emblematic bottle (with fluting).

Coca-Cola's action against the HABM's decision was unsuccessful.

Decision of the court against the Coca-Cola mark

With itsjudgment of 24.02.2016 – T411/14the General Court (EuG) upheld the HABM's decision. In the court's view, the bottle did not exhibit any features by means of which it could be distinguished from other bottles on the market. The applied-for mark constituted merely a variation of the shape of the bottle which did not enable consumers to distinguish goods from Coca-Cola from those of other enterprises.

Distinctive character is determined by the suitability of the mark to designate the goods for which registration is requested as originating from a particular undertaking.

In assessing the distinctive character ofthree-dimensional marksit must be taken into account that a three-dimensional product is not necessarily perceived by the average consumer in the same way as a word or figurative mark. In the absence of usual word and graphic elements, consumers do not necessarily conclude from the shape of the goods the source thereof.

The packaging of a liquid product is a mandatory distribution requirement, which the average consumer attributes primarily to a mere portioning function. A three-dimensional mark which consists of such packaging has distinctive character only if it enables the normally informed and reasonably attentive and understanding average consumer of the goods in question to distinguish such goods from those of other undertakings.

Only a mark which deviates significantly from the norm or from industry practice and can therefore fulfil its essential function of indicating origin possesses distinctive character.

The mark applied for by Coca-Cola consisted of a combination of elements, all of which can ordinarily be used in trade for the goods covered by the application, and therefore possessed no distinctive character for those goods. It could generally be concluded therefrom that the mark as a whole lacked distinctive character.

Coca-Cola could not provide evidence of acquisition of distinctive character through use of the mark.

Conclusion

With this decision, the European court reinforced the strict requirements for the distinctive character of three-dimensional marks. In particular in cases where the three-dimensionalmarkis to serve as product packaging, such packaging must be designed in such a way that the corresponding product is immediately distinguishable from products of other undertakings. The decision is not yet final. It remains to be seen whether Coca-Cola will lodge an appeal against this decision with the Court of Justice of the European Union (EuGH).