The German Deutsche See GmbH, a manufacturer of fish products, sought to register the above depicted three dimensional trade mark for fish in class 29 and gastronomy services in class 43. Both the Swiss IPO, the Federal Administrative Court and now the Federal Supreme Court refused the registration for lack of distinctiveness.
The Supreme Court briefly summarizes its practice regarding three dimensional trade marks and notes that consumers do not generally perceive the shape of a product as an indication of source, unless such shape is very unusual ("auffällige Eigenart") and distinct from the ordinary shapes of the goods in question.
It then turns to the question whether this practice also applies to packaging, and basically comes to the conclusion that this is the case. While consumers may perceive the overall appearance of packaging (shape, colour, graphical and literal elements) as an indication of source, this does not indicate that they will perceive the shape as such, devoid of any further signs, as an indication of origin. The Supreme Court notes that in some product segments, where consumers have been taught to perceive the shape of packaging as an indication of origin, that may be different (as an example, perfume bottles are mentioned). However, consumers will not perceive the packaging of fish products primarily as an indication of source.
Under the general "highly unusual" standard (I just invented that term), the packaging fails. It is aesthetically pleasing (I do hope they have registered it as a design), but insufficiently different from common packaging designs.
The Supreme Court does not address why the application was also refused for restaurant services - it would be highly unusual to offer these in the depicted packaging, no?
Link to German summary of decision of 23 May 2011 (with link to full text).
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