In joint cases T-326/10, T-327/10, T-328/10, T-329/10, T-26/11, T-31/11, T-50/11, T-231/11, the General Court confirmed the examiner’s decisions refusing to register the following figurative trade marks representing a light grey, dark grey, beige, dark red and brown coloured (insert relevant colours here) checked pattern, for goods in Classes 18, 24 and 25 except for “leather and leather imitations and walking sticks and canes” holding that the case-law on protection of 3D marks was applicable to goods which consist of fabric or products composed of cloth surface:

Indeed, the case-law in relation to three-dimensional trademarks consisting of the appearance of the product itself, also applies where, as in the present case, the trademark applied for is a figurative mark consisting of the two-dimensional representation of that product (Judgments Storck and Henkel).

The relevant public is the average consumer, even if in the present case they may be “top-of-the-range” products which are bought on special occasions, they can be considered mass consumption goods (according to Judgments Guhring) and there is no contrary specification in the description of applied-for goods.

The Court held firstly that for clothing and fabrics, colors and designs are merely a customer’s wish who chooses it accordingly to what it finds pleasant. However, he won’t presume that a specific pattern is an indication of origin of the product. Further, the checked patterns and colours (even for the most colourful patters, pink and red remain discreet colours) sought to be registered, do not diverge significantly from the norms of the sector.