In a recent judgment of 29 March 2023, the EU General Court ruled on the trademark protection of packaging. The question was whether an EU trademark consisting of a two-dimensional representation of a sweet packaging could be registered as a trademark.
The holder wanted to register a cylindrical container with wavy lines as a trademark for all kinds of confectionery.
Basically, the shape of a container can qualify as a trade mark in the EU if that shape can distinguish the goods of the company concerned from those of other companies. In short, there must be distinctiveness.
To assess distinctiveness, the same criteria are applied to all types of marks: it makes no difference whether it is a word, a sound or packaging.
However, it was previously held that the average consumer’s perception of a three-dimensional mark for packaging will be different from a word or figurative mark.
Indeed, it is not common for the average consumer to assume the origin of goods based on their shape or that of their packaging, without any graphic or textual element. Therefore, it may be more difficult to conclude distinctiveness for such a three-dimensional mark than for a word or figurative mark.
The Court now holds that this also applies in the present case, where the mark is a figurative mark consisting of the two-dimensional representation of the packaging.
The assessment of distinctiveness must be made in relation to the goods or services for which registration is sought (here: confectionery) as well as the perception of those goods or services by the relevant public. Therefore, the Court held that the trademark did not contain any distinctive element because of its typical presentation within the sector of the goods in question. In other words, the consumer will not recognise whose sweets are sold in such a jar.
Even if the depiction of the packaging is considered to be a complex geometric figure, it remains necessary that it also possesses features that are easily recognisable by the relevant public, so that they are understood as an indication of the commercial origin of the goods in question.
This judgment shows the importance of creating distinctiveness in packaging design and branding.