Colour Cohesion: The Secret To Registering Your Alcohol Bottle Shapes?

• Published date: 14 December 2022
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Food and Drugs Law
• Law Firm: Kilburn & Strode
• Author: Rowena Tolley

A bit of background

Last year, we discussed the General Court's decision partially to annul three decisions on the comparison of 3D Champagne bottle marks. In a nutshell, the Court held that the distinctiveness of a 3D shape should be assessed by taking into account the sign as a whole, including elements (or lack of elements) which are seemingly negligible.

Recently, further guidance from the Fifth Board of Appeal (the Board) in relation to the registrability of 3D shapes (specifically in the drinks sector) has come to light. This follows an EUIPO examiner's decision to refuse registration of a vodka bottle as a 3D shape mark on the basis of non-distinctiveness, the elements not being outstanding or eye-catching enough to create an overall impression that would significantly depart from the customs and norm of the relevant market. The examiner also considered that the average consumer would perceive the packaging as "a mere variation of a container" (and not as a sign of origin).

This case was brought to the Board by the Applicant, vodka giant The Absolut Company Aktiebolag, in relation to the following mark:

Registrability of 3D marks

When reassessing the shape mark's registrability, the Board singled out the following particular elements:

1. The copper-coloured closure of the bottle.
2. The body structure and further features (such as the short neck, conical bottle shoulder, bottle structure and proportions).
3. The surface design consisting of a seemingly "striking" crystal-like structure.
4. An unusual copper back to the bottle which can be seen through to the front due to the transparent vodka.
5. The front label consisting of a prominent copper-coloured frame.
6. The copper-coloured neck foil/wrapper.

The Board was of the opinion that elements A-C were not particularly distinctive.

Elements D-F, however, would "not go unnoticed by consumers" and had a "strong impact" on the way consumers would perceive the whole shape of the bottle. The Board stressed that the shared colouring (copper, brown and gold shades and nuances) meant that elements D-F worked together in such a way as not to be considered too complex to be remembered by consumers. Rather than being purely "decorative", the colour scheme would, due to its size and predominance, be seen as "eye-catching and striking".

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