In Case T-66/13, Franz Wilhelm Langguth Erben GmbH (Germany) applied for registration of the figurative mark (here left) for Class 33 goods ‘alcoholic beverages, blackberry liquor’. OHIM refused registration raising an absolute grounds objection on the basis of Article 7 (1) b) CTMR.

The General Court upheld OHIM’s decision and confirmed first that the relevant public is the average German consumer due to the German verbal element written on the bottle. Second, even if the shape differs from the other shapes of bottles produced by the applicant, it does not diverge significantly from the norms and customs of the sector. On the contrary, it is quite an ordinary shape. The verbal element “echte Kroatzbeere” or “real berries” embossed at the bottom of the bottle, although not a commonly used expression in German (referring to a local expression for ‘blackberry’) , will still be perceived as the content of the bottle, and therefore also lacks distinctive character.