Coca-Cola offers us not only a ‘unique refreshment’ in a designer bottle, but also brings something to the EU acquis communautaire by losing (this time) its battle to register their bottle as a three-dimensional trademark.
The European Union Court dismissed the complaint of The Coca-Cola Company against the decision of the Office for Harmonization in the Internal Market (OHIM) refusing to register a Community trademark in the form of a “contour bottle without fluting” (case number T-411/14).
As a rule, any mark which can be represented graphically, allowing it to distinguish the goods or services of one company from those of other companies can be registered as a Community trademark. In particular, it may be a three-dimensional mark, i.e. one that consists of a three-dimensional shape that reflects the shape of the product or its packaging.
Therefore, Coca-Cola requested registration of the following three-dimensional mark for metal, glass and plastic bottles:
The problem of everyday goods
In the OHIM’s opinion, such goods are intended for everyday use and are mainly targeted at the general public, and therefore a consumer is not very attentive and presumably retains only an imperfect memory of goods bearing the mark. At the same time the OHIM found that this shape is not significantly different from the typical shapes of other bottles on the market.
‘Natural evolution’ of the contour bottle?
Coca-Cola claimed, however, that the trademark to be considered is a ‘contour bottle without fluting,’ which consumers associate with the famous Coca-Cola’s “contour bottle with fluting” (shown below), registered as Community trademark in 2014. The OHIM, however, ruled that the overall impression of the bottle is different because it is the grooves that grab the attention of consumers in the case of the ‘contour bottle with fluting’.
And here is the ‘contour bottle with fluting’:
The mark has not gained a distinctive character as a result of its use…
The OHIM also rejected Coca-Cola’s argument that the mark has acquired distinctive character through its use in accordance with Article 7 paragraph 3 of the 207/2009 regulation. The Office pointed out that in order for a mark to gain a distinctive character as a result of its use it is required that a significant proportion of the interested consumers identified the goods or services as represented by the mark as originating from a particular company. At this point the share of the mark in the market, the intensity, geographical extent and duration of the use of the mark, the amount invested by the company in promoting it, the proportion of consumers who associate the goods with the company as a result of that, as well as chambers’ and professional associations’ opinions should be taken into account.
Meanwhile, in the opinion of the Office, the evidence concerning the perception of the mark by the relevant public presented by Coca-Cola in the proceedings was insufficient and not very convincing. As a result, Coca-Cola failed to prove the ‘contour bottle without fluting’ acquired distinctive character through its use.
The Court of the EU predominately shared the OHIM opinion and dismissed Coca-Cola’s appeal. It seems in the case of packaging whose shape is largely determined by their function, such as bottles, the shape submitted for registration must significantly differ from the standards, should be characterized by high originality, in order for its registration to be successful.