Case T-178/11

"...the shape of the bottle in question does not depart significantly from the shape of other containers used for alcoholic or non‑alcoholic beverages within the European Union and is a mere variant thereof .... [T]he shape in question is a perfect cylinder, ... the vast majority of bottles to be found on the market have a cylindrical section, and ... consumers naturally expect cylindrical shapes for bottles of alcoholic or non‑alcoholic beverages, even if they are also aware of the existence of non-cylindrical bottles. Regarding the lack of a narrow neck, which, according to the applicant, distinguishes its bottle from other commercially available bottles, ... this amounts to a variant of the existing shapes and cannot be regarded as a significant divergence. ... it is not even certain from the contested trade mark’s representation that the bottle has no neck, since the cap is not transparent .... [T]he applicant is wrong to claim that a distinctive feature of its bottle is its non-transparent cylindrical cap – this... is hardly distinctive, given that many bottles are sealed with caps which are of a different material and colour from their bodies .... Lastly, ... the shape in question has already appeared on the market in the past, although it was abandoned ..."