Advocate general against protecting dishwasher tablets

European Union

In his opinion on the joined cases of Henkel KGaA v Office for Harmonization in the Internal Market (OHIM) and Procter & Gamble v OHIM, Advocate General Colomer has agreed with the decision of the European Court of First Instance (CFI) to reject various Community trademark applications for three-dimensional marks consisting of the shape of dishwasher tablets.

The CFI had ruled that the substantially rectangular or round tablets were devoid of any distinctive character, even when they incorporated various coloured layers, speckles, surrounded edges and other features. The CFI had found that consumers would not be able to recognize the product as emanating from a specific undertaking, purely on the basis of its appearance.

While both Henkel and Procter & Gamble contended in their appeals that the CFI had applied an incorrect test to assess the distinctive character of the marks in question; Colomer disagreed and approved the CFI test. He opined that, although the test to be applied to trademarks that represent the shape of the goods should not be any more rigorous than that applied in relation to other signs, it may be adapted to the particular features of this category of signs. When assessing whether a sign is unusual, it is not only to be compared with the goods currently on the market, but "with a paradigm composed of features which spring to mind if the shape of the product is imagined".

For a discussion of another case in which an application for the registration of the shape of dishwasher tablets was refused, see Dishwasher tablets are devoid of distinctive character, rules CFI.

Peter Munzinger, Bardehle Pagenberg Dost Altenburg Geissler, Munich

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