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ARTICLE · 28 JULY 2004

Distinctiveness of the Three-dimensional Marks

The issue as to the distinctiveness and registrability of three-dimensional trade marks has occupied the European courts for some time now, with significant decisions concerning registrability of the shape of a forklift truck, a torch, a wristwatch, cigar and gold ingot shapes for chocolate, the shape of soap tablets for washing machines and the registrability of a three dimensional mark consisting of the packaging of a product.

European UnionIntellectual Property
Kristien Carbonez
Kristien Carbonez

The issue as to the distinctiveness and registrability of three-dimensional trade marks has occupied the European courts for some time now, with significant decisions concerning registrability of the shape of a forklift truck, a torch, a wristwatch, cigar and gold ingot shapes for chocolate, the shape of soap tablets for washing machines and the registrability of a three dimensional mark consisting of the packaging of a product. The latest opinion of Advocate General (AG) Ruiz-Jarabo Colomer on 16 March 2004 in Mag Instruments Inc v OHIM confirms the line of reasoning adopted by the European Court of Justice (ECJ) and the Court of First Instance (CFI) in its earlier case law. In a nutshell, the AG opined that three-dimensional marks relating to the cylindrical shapes of torches should be rejected on the ground that they lacked distinctiveness.

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