Community position trademarks – an increasingly difficult position

By Hidde J Koenraad

Although position marks are accepted by the Office for Harmonisation in the Internal Market, they tend to be refused by the General Court and the European Court of Justice. What strategies can rights holders use to ensure that their signs depart from the norm or customs of the sector?

While the EU Trademark Regulation is designed for the registration of “word marks, designs, letters, numerals, the shape of goods or of their packaging” as Community trademarks, it is well known that it leaves the class of objects of the trademark right unenumerated. As jurisprudence around the regulation has grown, so has our understanding of the potential for other marks. These range from natural extensions of particular targets (eg, three-dimensional (3D) marks) to more exotic gustatory, olfactory and auditory marks. Somewhere in between the two extremes are position marks.

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Issue 72