Distinctiveness of bottle surfaces under OHIM standards

The General Court has confirmed in cases T-109/08 and T-110/08 that no registration should be granted to trademarks consisting in the specific aspects of wine bottles because they lacked distinctiveness and were not evidenced as having acquired distinctiveness though use.

Spanish company Frexeinet SA had filed for ‘sparkling wines’ in class 33 the trademarks below for the surface of a matte golden color with a frosted effect (case T 109/08) and another trademark application for the surface of a black matt bottle (case T-110/08). The applicant joined to its application a statement indicating that no protection was claimed as to the shapes of the bottles but only in respect of the specific aspects of the surfaces.



For the Court, a surface of a bottle does not allow consumers to identify the origin of a product and cannot work as a trademark. Consumers are not in the habit to identify the origin of wines on the sole basis of the aspect of bottles or of their packaging and without any additional graphical or word element. The General Court also stressed that granting registration to the two surfaces at hands would allow their holder to bring proceedings against anyone using a black matt surface or a golden color surface with frosted effect regardless of whether bottles would be concerned.

These decisions show that a trademarks seeking protection for specific surfaces of products are amongst the utmost non-traditional signs which registration is consequently the harder to get. They also warn on the particular care, selection and study to apply for evidencing acquired distinctiveness through use to submit to the OHMI which exam is quite drastic in this respect.


CTM involved in case T-109/08  CTM involved in case T-110/08

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