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

• Published date: 14 December 2022
• 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...