Based on a study of data in the Darts-ip case database, Donatienne Moreau and Joanna Diakomichali review trends on distinctiveness of 3D trade marks in European cases at appeal level.
Three-dimensional trade marks consisting of product shapes or packaging are registrable in theory but often hard to obtain in practice. In the European Union, there have been many cases both in the European system and in national courts. Many of these applications are in the food, beverage, cosmetics/household products and pharmaceutical industries, and so it is worth analysing cases in these sectors in more detail.
Doing so, we can detect tendencies in the chance of reversing an examiner’s refusal for registering a three-dimensional mark. One of those tendencies is that the EUIPO Board of Appeal, when compared to the Swedish Patentbesvärsrätten (appeal body of the Swedish examination decisions), seem less reluctant to reverse the refusal and at least partially accept the trade mark. Germany has a good reversal rate for trade marks covering the cosmetic, pharma and food industries.