We reported earlier on the difficulties involved in attempting to register the KitKat four-finger bar shape here.

In another shape trade mark application, late last month, the General Court ruled that Coca-Cola had failed to show that its Community Trade Mark application for one of its bottle designs had enough distinctive character.

The General Court confirmed OHIM’s opinion that the mark was just a mere variant of the shape of a bottle which did not enable the consumer to distinguish Coca-Cola’s goods from those of other undertakings. This was so, despite Coca-Cola insisting that the mark consisted of a bottle without fluting, which was an evolution of its famous bottle with fluting. In case of interest, the evolution of the Coca Cola bottle can be found here. Coca-Cola has however secured some protection for its bottle design over the years, including in CTM No. 2754067, CTM No. 4554994 and Community Registered Design No. 672035-0001.

Of further interest in this case is the General Court’s criticism of the surveys that Coca-Cola relied upon, noting that the surveys were carried out in less than half of the member states in the EU, asked leading questions, and percentages given in the results did not add up properly. Parties who seek to rely on survey evidence in trade mark cases are reminded just how important it is to ensure that the questions are correctly worded and that the surveys are properly carried out in order for this type of evidence to have any real value.

Is this the end of an era for shape trade marks? As with all cases, we feel that the specific facts and circumstances of a particular case play a large part in the overall outcome. Whilst shape marks have notoriously been difficult to protect, parties who feel strongly about the identifying nature of a shape as their brand should not be completely deterred by these recent decisions.