ECJ: Coca-Cola bottle not patentable as a three-dimensional trademark

In its judgement of February 24th 2016 the European Court of Justice (ECJ) also confirmed the limited patentability of the trademark registration of the Coca Cola Company for a bottle design (Judgement in case T-411/14, The Coca-Cola Company / HABM).

The Coca-Cola Company filed the following three-dimensional trademark application with the Office for Harmonisation in the Internal Market (OHIM), the European Patent Office:

The OHIM rejected this application in view of the existence of so-called absolute grounds for refusal of protection and the associated requirement to maintain the availability of the bottle design for other drinks producers. Coca-Cola appealed against this and has now been defeated again at the European Court of Justice. In the grounds of the judgement, it is stated that the 3D trademark the company seeks to register pertains to "a bottle like most other bottles on the market. A design such as this may indeed be commonly used in trade for the goods covered by the application for registration. The manner in which the components of this composite trademark are combined is therefore not sufficient to imbue the mark with distinctive character either. Thus, the trademark applied for constitutes no more than a variation on the shape and the presentation of the goods in question - such as do not enable the average consumer to differentiate the goods in question from those of other companies. As such, the Board of Appeal has not made any error in its assumption that the average consumer in the Union perceives the trademark applied for in its entirety as no more than a variation in the design and presentation of the goods for which the trademark has been sought."

Dr. Robert Kazemi