In Case T-492/11, «Rauscher» Consumer Products GmbH (Austria) applied for the registration of the following figurative mark for products in Class 5.

The examiner partly refused registration on the basis of Article 7 (1) b) CTMR for “Feminine hygiene products; hygienic tampons “ on the grounds that the object represented a hygienic tampon and the arrow represented its method for use, indicating how liquid enters. The relevant public, namely average women consumers, will perceive the sign as a usual representation of the shape of a tampon, dictated by its function. The functional elements do not confer any more distinctive character nor do they distinguish the applicant’s products from other commercial undertakings.

The General Court dismissed the appeal. Even though the Board of Appeal did not take into consideration relevant precedents regarding the almost identical trademark n°9216722 registered for the same goods, the Court held that the distinctive character of a trademark must be examined in each concrete case, as the Board did here.

More fun shape marks case-law in General Court here.