Dishwasher tablets are devoid of distinctive character, rules CFI

In Unilever NV v Office for Harmonization in the Internal Market (OHIM), the European Court of First Instance has affirmed an OHIM Board of Appeal decision to reject the registration as a Community trademark of a three-dimensional tablet form.

In December 1999 Unilever filed an application to register an irregular three-dimensional ovoid form in black and white for, among other things, dishwasher tablets. The OHIM rejected the application, as did the Board of Appeal.

On appeal, the Court of First Instance upheld the decision on the basis that the three-dimensional tablet form lacks distinctive character. It found that:

• the shape mark consists of the appearance of the product itself;
  
  
• in differentiating between dishwasher detergents, consumers are oriented towards the packaging rather than the content (ie, the tablet);
  
  
• the Unilever tablet scarcely differs from the oval or square tablets to which consumers are accustomed; and
  
  
• even the added mottling effect on the Unilever tablet is the obvious result of combining various substances and is the usual appearance of cleaning agents.

Consequently, ruled the court, there is little chance that the relevant consumers would (i) be oriented towards the ovoid tablet form, and (ii) buy it again on the basis that they recognize its shape and origin.

Stephan N Schneller, Maiwald Patentanwalts GmbH, Munich