The case: Coca-Cola is the proprietor of a well-known three-dimensional EU trade mark consisting of the shape of its contour bottle with grooves:
In addition, Coca-Cola applied for the following variation as a three-dimensional EU trade mark for beverages. The application was successful.
Beverages are usually sold in containers. The shape of these containers is also the shape of the product.
Can you register the shape as a trade mark? Actually, yes, but only under special conditions. This is because a trade mark must be able to indicate the origin of the relevant products as coming from a particular business. However, the average consumer does not usually conclude from the mere shape of a product or the shape of its packaging that the product originates from a particular business. For this to be the case, the shape applied for must already deviate considerably from the norm or what is customary in the sector, although unusual features are not required.
The shape of the bottle applied for did not contain such unusual features. But the combination of its vertical and horizontal grooves running across the bottles at various intervals was unusual and imaginative in the drinks market. It therefore clearly went beyond the usual shapes of beverage bottles. The shape of the bottle enabled consumers to distinguish the beverage it contained from the beverages of other manufacturers. Consumers may thereby buy the beverage contained in the bottle again if they have a positive impression or, conversely, may choose precisely not do so.
Accordingly, the applied-for shape of the Coca-Cola bottle was registered as a trade mark.
EUIPO, 31 March 2014, R 523/2013-2.
On the same day, Coca-Cola also registered the following bottle shape as a trade mark:
However, this shape of beverage bottle was common in the beverage sector. Could it nevertheless be registered as a trade mark? See the blog article Brand for ordinary product shape – Coca-Cola.
Learnings: If you want to monopolise the shape of a product inexpensively for an indefinite period of time via trade mark protection, make sure that the shape deviates significantly from what is customary in the industry.