In case T- 209/13, Olive Line international SL applied for registration of the following CTM for Class 29 “edible olive oil”

The Examiner and the Board of Appeal rejected it on the grounds that the mark was devoid of distinctive character according to Article 7 (1) b) CTMR.

As regards the shape of the bottle it is relatively common and mundane and its lines are identical to those usually found in that sector.There are no characteristics which would distinguish the bottle in question from other olive oil bottles available on the market. The relevant public is the average EU consumer. It does not matter that this might be “delicatessen” olive oil sold at a price higher than average olive oil, OHIM needs to look at the wording of the applied for goods, namely “edible olive oil”

With regard to the green color used, in the market of olive oils, a considerable part of the glass containers are green so the consumer is accustomed to this type of container and thus won’t perceive the color green as an indicative element of any commercial origin. Further, the use of a dark glass bottle responds to a technical requirement of bottling olive oil to be protected from harmful light.Finally the use of the green color will be perceived as a color reference to the olives and therefore of the edible olive oil contained in the bottle.

With regard to the word 'olive line, "reproduced on the bottom of the bottle, as well as purely figurative elements, namely the two circles with leaves and olive, beneath the neck of the bottle, they will not be perceived immediately or remembered by the relevant public as they have a purely decorative function and clear and would immediately be understood as a reference to the product concerned.

Taken together, these factors will not be able to sufficiently influence the overall impression produced by the sign of the average consumer of olive oil. This bottle does not differ significantly from the other bottles of olive oil available on the market.The sign in question is a simple variant of the usual forms of bottle containing olive oil and is consistent with other bottles sold in this sector.

The General Court dismissed the appeal. It confirmed that the Applicant’s other trade marks containing “OLIVE LINE” are irrelevant here (see Case T-273/10 Olive Line International /OHIM) because they contained figurative elements which are not present in this application and does not change the conclusion that the words are descriptive for the goods at issue.