The CJEU Bottles It

The CJEU has recently maintained the General Court’s decision to cancel Voss’ iconic water bottle as a 3D trade mark due to a lack of distinctive character. The CJEU supported the view that the Voss bottle’s shape did not significantly depart from other drinks bottle shapes on the market and was simply a mere variant of well-known shapes. This was found to be the case both when looking at the overall impression of the bottle as a whole and when assessing the mark’s components (i.e. the bottle’s see-through tubular body and matte lid). Whilst the successful defence by Rubik's Cube of a similar 3D mark cancellation action provided some hope to the owners of similar marks, this decision is consistent with OHIM’s view of non-distinctiveness for 3D shape marks. Nonetheless, this decision will come as a blow to the owners of older products with a distinctive look and feel. With OHIM’s current position on 3D marks appearing more stringent than a decade ago, brand owners possessing registered 3D marks should carefully consider how they go about enforcing their rights together with whether they wish to seek alternative protection for new designs via a Registered Community Design instead.

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