In Judgments C-344/10 and C-345/10, the Court of Justice of the European Union confirmed the validity of the governing case-law regarding the distinctive character of three-dimensional trademarks which consist of the appearance of the product itself or the packaging of a good.

The test to examine the validity of a 3-D trademark is as a follows: the mark must be assessed first, by reference to the goods or services and the perception by the relevant public, and second whether it departs significantly from the norms or customs of the sector and thereby fulfils its essential function of the origin.

The contested judgments of the General Court and decisions of the First Board of Appeal violated Article 7(1) (b) CTMR because they considered the norms of the sector to be that no bottle is ever sold without a label or equivalent, it means the great majority of consumers do not perceive the appearance of the bottles as a useful factor in determining the origin of the sparkling wine in question, but prefer to refer to the label.

The CJEU censored such assessment on the grounds that any mark consisting of the appearance of the packaging of the product itself that do not contain an inscription or a word element, would be excluded automatically from the protection that may be conferred by the CTMR.

Freixenet SA and producers of beverages can rest assured: according to Community trademark law a distinctive feature of a bottle can function as a trademark per se, as long as it ‘departs significantly from the norms of the sector’.