Shape of a bottle capable of holding the attention of the public and indicating commercial origin
03-12-2003 Print this page
The Board of Appeal erred in finding that the three-dimensional mark applied for is devoid of any distinctive character. The combination of elements of presentation on the bottle gives it an appearance which is capable of holding the attention of the relevant public and indicating its commercial origin
"41. It results from an examination of all the documents put before the Court by the parties that the combination of the abovementioned elements of presentation, which make up the mark applied for, is truly specific and cannot be regarded as altogether commonplace. Thus the nearly cylindrical main section of the bottle bears oblique grooves which, first, completely cover the bobbin-like part of the bottle and accentuate the curved, rounded effect of the bottle’s upper part and, second, are highlighted by the presence on the lower part of the bottle of grooves running in the opposite direction, the whole forming a design which is striking and easy to remember. That combination thus gives the bottle at issue a particular appearance which, taking account also of the overall aesthetic result, is capable of holding the attention of the public concerned and enabling that public, made aware of the shape of the packaging of the goods in question, to distinguish the goods covered by the registration application from those with a different commercial origin (see, to that effect, Case T-128/01 DaimlerChrysler v OHIM (Grille) [2003] ECR II-701, paragraphs 46 and 48).
42. Furthermore, in considering that the mark applied for was devoid of any distinctive character, the Board of Appeal misinterpreted the terms of Article 7(1)(b) of Regulation No 40/94, from which it follows that a minimum degree of distinctive character is sufficient to render inapplicable the ground for refusal set out in that article (Case T-34/00 Eurocool Logistik v OHIM (EUROCOOL) [2002] ECR II-683, paragraph 39, and Grille, paragraph 49). Since, as stated above, the mark applied for is made up of a combination of elements of presentation which is particular and distinguishes it from the other shapes on the market for the goods concerned, it must be considered that the mark applied for, taken as a whole, has the minimum degree of distinctiveness required."
IPPT20031203, CFI, Nestlé Waters France v OHIM
T-305/02 - ECLI:EU:T:2003:328
