Bitter sweet shapes excluded from trademark protection

On June 22, 2006, the CJEC, retained the lack of distinctive character of the two device trademarksand .

In fact, their shape and colours were not different

(i) from those commonly used in trade and

(ii) from trademarks which might exist in the confectionery sector.

The judge also rejected an acquired distinctiveness through use since the above shapes were not regarded as used as trademarks: consumers could only perceive the essential elements of the three-dimensional shapes, but would not consider these as trademarks.

These decisions comply with the tendency of the European case law which recognises distinctiveness for three-dimensional trademarks.

The increase of rejection cases does not however bring to automatic rejections as a particular care and analysis are required when filing three-dimensional signs as Community trademarks.

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