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SUNDAY, 12 JUNE 2016
General Court: candy shape lacks distinctive character
In case T-240/15, Grupo Bimbo, SAB de CV applied for the following 3D mark for goods in Classes 5, 29 and 30. The EUIPO rejected the mark, among others
- Class 29: 'coated Peanuts ";
- Class 30: 'Cocoa (confectionery); almonds (based confectionery of-); cereal bars ; High protein cereal bars; cocoa, chocolate, peanut (based confectionery of-); pastilles (confectionery);pralines; confectionery for decorating Christmas trees, small chocolate covered bars.
The EUIPO rejected the application on the grounds that the mark lacked distinctive character according to article 7(1) b) of the EUTMR because it considered that the mark was not fundamentally different from certain basic shapes of the products. The Board of Appeal took the view that the mark was more a variant of the basic shapes or had a utilitarian function.
The General Court dismissed the appeal. First, it rejected the applicant´s argument that the appropriate level of public attention was higher because teenagers are a sophisticated and picky consumer, like to create trends for social prestige and their consumption would be particularly motivated by the "desire to eat something good and different."
Second, the fact that the the bar was composed of four circular portions did not confer distinctive character since the circular shape was a basic geometric shape and that the relevant public is accustomed to find and consume chocolate bars divided into juxtaposed portions.
Moreover, the Court upheld the reasoning of the BoA regarding goods in Class 5. For pharmaceuticals, the mark was devoid of any distinctive character since the consumer would perceive the mark as a variant of these medicinal tablets tablets interconnected so as to separate them from each other . For food, dietary and pharmaceutical animal, these products could, from the perspective of the consumer (veterinary or average consumer expert), come in the form of bar, like that in the mark. Finally, for baby food, the consumer would associate the brand in the form of a type of biscuit made of a row of four rounded portions. Moreover, because of its rounded appearance and its narrow and elongated shape, the Board of Appeal found that the baby could well hold one end of the bar with his hand and put the other in his mouth. So the consumer would grant no distinctive feature to the shape in question, but would see a utilitarian function.
Posted by: Laetitia Lagarde @ 22.04
General Court, absolute grounds, 3D, Bimbo,
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