Shape mark applications won't wash with Court of First Instance

In the joined cases T-241/05, T-262/05, T-263/05, T-264/05, T-346/05, T-347/05, T-29/06, T-30/06, T-31/06 (Procter & Gamble v Office for Harmonization in the Internal Market (OHIM)), the European Court of First Instance (CFI) has dismissed Procter & Gamble's (P&G) appeal against OHIM's decision to refuse its application to register the shape of washing tablets as three-dimensional trademarks.

P&G submitted nine applications for the registration of the shape of a washing tablet as a Community trademark. The shape consists of a square white tablet with a specific floral design in its centre. P&G sought registration for "Washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps". OHIM refused the applications and P&G appealed to the CFI.

OHIM had taken the view that the marks applied for were devoid of any distinctive character. In its appeal, P&G focused on the public and the manufacturers in the market concerned in order to convince the CFI that the shape does fulfil a role in distinguishing the product. It stressed that the design at the centre of the tablet constitutes an additional and distinctive feature.

Perhaps unsurprisingly, the CFI rejected the appeal. In essence, the CFI held that any alleged circumstance that could lead to the conclusion that the shape has a distinctive character must be substantiated by the applicant. Among other things, the CFI confirmed OHIM's standard argument that basic geometric shapes are not distinctive. Given the simplicity of the designs in question and the fact that they differ only slightly from basic geometric shapes, the court held that the applications lacked distinctiveness. The presence of the design at the centre of the tablet did not assist P&G's case as the CFI concluded that such a design is likely to be viewed as indicating the existence of an active ingredient in the middle of the washing tablet.

Paul Steinhauser, Steinhauser Hoogenraad Advocaten, Amsterdam