The President of the Brussels Commercial Court has recently held that the "X" shape of Mars’ Dentastix dog food constituted not only a valid three-dimensional Community trade mark but also a valid Benelux design. Mars invoked both IP rights in infringement proceedings against a Belgian company which was selling similar "X"-shaped chew sticks for dogs on the European market.

Of particular interest to the Class 99 blog is the design aspect of this action:

Concerning the Benelux design rights (although the design’s validity was not formally disputed), the defendant argued that the X shape was exclusively dictated by the desire to obtain a technical result (ie, preventing the sticks from rolling away and providing optimal cleaning of the interdental spaces). The court did not agree with this argument. On the contrary, based on the abundance of examples about the appearance of dog food, the court held that there was a high degree of freedom when designing chew sticks and that the parties’ designs did not produce a different overall impression on the ‘informed user’. While the court defined the ‘informed user’ as a consumer buying dog food (typically someone showing a relatively high degree of attention), it also referred to the fact that dog food is a fast-moving consumer product often grabbed hastily by consumers from supermarket shelves. The minor design differences would therefore not be sufficient to produce a different overall impression on the consumer.

This blogger reminds readers that, while the "user" of a dog biscuit is the dog, the "informed user" is the person who buys it for him.

Source: "Brussels Commercial Court bares its teeth and protects shape of dog food", by Paul Maeyaert, Altius, and posted on World Trademark Review, 14 December 2014 (this post gives a link to the original judgment, which you can also access here).