An often neglected area during the filing of a Trademark
application is the filing of evidence to prove the use and the
secondary meaning (if any) associated with the mark in the minds of
the public. The evidence filed should be exhaustive, conclusive and
convincing, if these elements are absent it could cost a proprietor
the registration of such mark.
A non-alcoholic beverage giant like Coca-Cola too made the error
of filing flimsy evidence before the OHIM and Board of Appeals when
claiming that its 'contour bottle with fluting' had
acquired a distinctive character through its usage. The flaws in
their evidence were apparent for instance, though the application
had been filed for registration throughout EU (via OHIM), the
survey showing association of the shape mark, exclusively with
Coca-Cola, in the minds of the public was conducted only in 10
member states. Therefore, the survey was not conclusive and did not
lead to the inference that in all member countries, the
