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Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Spain: the Supreme Court on 3D marks … again!

If one examines the recent production from the Spanish Supreme Court in trade mark cases, it is pretty clear that 3D marks are in the limelight. The most recent case that has come to Class 46's attention dates from February 10, 2009, and deals with the infringement of a 3D Spanish mark consisting in the shape of a bottle of cava (not to be confused with the French champagne). It is registered by the Spanish company Freixenet.

On the left- Freixenet's Spanish trade mark: "frosted glass" cava bottle.

The relevant registration covers this specific shape of a bottle, with glass which is “frosted” – in Spanish “cristal esmerilado”. This specific characteristic is expressly mentioned in the trade mark description.

On the basis of this Spanish registration (amongst others), Freixenet sued a competitor that also sold cava in “frosted glass” bottles.

Although it was out of the question that the the “frosted glass” feature of the claimant's trade mark was reproduced in the alleged infringing bottles, the respondent was held not to be liable for trade mark infringement as the lower Court found that this specific feature was ancillary. The conclusion the lower Court reached is that the imitation of the “frosted glass” feature in the respondent’s cava bottle was not enough to cause confusion in the Spanish market with Freixenet’s cava bottles.

Departing from the results of a demoscopic survey that proved that the 70% of the Spanish consumers associated the "frosted glass" cava bottle with the products sold by Freixenet (trade mark owner), the Spanish Supreme Court found that the “frosted glass” feature was famously associated with Freixenet. This lead to the conclusion that this was the essential element of the Spanish registration, and that the respondent was liable on the grounds of trade mark infringement.

Posted by: Ignacio Marques @ 18.01
Tags: 3d trade marks, infringement., Spain,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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