In December 2011, Coca-Cola applied to the Office for Harmonisation in the Internal Market (‘OHIM’) for registration as a Community trade mark for the shape of its metallic, glass and plastic bottles.
In March 2014, OHIM rejected the application for registration on the ground that the mark sought was devoid of any distinctive character in respect of the goods covered by the application.
The world’s biggest soft-drink company then brought an action before the EU General Court in Luxembourg for the annulment of OHIM’s decision. It tried to convince the General Court that consumers would view it as a “natural evolution” of the earlier shape for which it had obtained protection for back in 1980. Its iconic curvaceous, fluted contour glass bottle is loved by designers and artists from Salvador Dali to Andy Warhol.
The court however has ruled that the shape of the bottle is “a bottle like the majority of bottles on the market”, and as such the mark sought is a “mere variant of the shape and packaging” of such products “which will not enable the average consumer to distinguish” this shape from others. The court concluded that the sign at issue is devoid of distinctive character required for registration. It further started that Coca-Cola has failed to establish that the sign had acquired distinctive character through use. As such the court dismissed in its entirety the action brought by Coca-Cola.
Shape trade marks are notoriously difficult to secure. Past cases in the EU courts have set clear, unambiguous rules that for a shape to acquire intellectual property protection, the owners must prove that consumers can recognise the product in question exclusively by that characteristic, and not in combination with for example a logo or another sign.
Coca-Cola is understandably disappointed with the outcome and is considering whether to pursue the matter further to the Court of Justice. In an emailed statement the company commented “Coca-Cola has been trying since 2011 to get an EU trademark for the bottle shape, whether made out of glass, metal or plastic. The bloc’s trade mark office based in Alicante, Spain, in 2014 decided the shape lacked distinctive character.”