Coca-Cola applied in 2014 to the Office for Harmonisation in the Internal Market (OHIM) to register a three-dimensional sign in the shape of a ‘contour bottle without fluting’ as a community trade mark to cover metallic, glass and plastic bottles.
OHIM initially rejected the application in March 2014, stating that the mark was “devoid of any distinctive character in respect of the goods covered.
OHIM did not accept Coca-Cola’s argument that the contour bottle without fluting was a natural evolution of its famous bottle with fluting.
Coca-Cola had asked the General Court to overturn OHIM’s decision. However, the General Court confirmed OHIM’s opinion that the bottle “does not possess any characteristics that distinguish it from other bottles available on the market.
The Court had “serious doubts” about the reliability of surveys from Coca-Cola that purported to show that the mark applied for had acquired distinctive character throughout the European Union.
The surveys were not carried out by a recognised market research company, but by a former director of that company who set up as an independent consultant, the Court said. The surveys were carried out in less than half of member states, asked leading questions, and percentages given in the results did not and up properly, it was stated.
The sign therefore does not have the “distinctive character” needed for registration as a trade mark, and Coca-Cola has failed to show that it has acquired this distinctive character through use, the Court said.