The Portuguese company Rosenruits sought to register the above depicted figurative mark (pocket of a jeans or trousers) for clothing, shoes and bags. The Court, like the examiner and the Second Board of Appeal before it, had none of it. It found that "the mark in question does not have any characteristic element, nor any memorable or eye-catching features likely to confer a minimum degree of distinctive character and enabling the consumer to perceive it otherwise than as a typical decoration of a pocket for goods in Classes 18 and 25."

Seems straightforward for clothing, in particular jeans. But pockets on shoes, sandals, slippers, trunks, umbrellas (all claimed in classes 18 and 25)? The applicant may not have profited much from a mark for shoes, but should the Court not have been a bit more discerning as far as the goods were concerned? After all, this would be a fairly unusual and distinctive sign if found on a shoe, no?

T-388/09