The Bottle is the Message: Only the Distinctive Survive as 3-D Community Mark
63 GRUR INT 1195 (December 2014).
13 Pages Posted: 18 Feb 2015 Last revised: 19 Apr 2016
Date Written: December 1, 2014
This article explores the distinctiveness criterion, the absolute refusal ground for the registration of three-dimensional community marks, for bottles. The office for Harmonisation in the Internal Market (OHIM), the OHIM Boards of Appeal (BoA) and the General Court (GC) insist that three-dimensional community marks are treated as any other mark in the assessment process.
However, statistics demonstrate the opposite, which has arguably led to an underutilization by business of the three-dimensional community mark. Are the criteria applied by OHIM transparent and predictable? Which pattern, if any, can be abstracted from the assessments on distinctiveness of bottles?
Keywords: three-dimensional community trademarks, OHIM, CJEU, shape trademarks, bottles, 3-D community marks
JEL Classification: Q34
Suggested Citation: Suggested Citation