EGC rules: Yellow curved line cannot be registered as a Community Trademark

The EGC (European General Court) decided that a yellow curved line cannot be registered as a position mark as it as it lacks distinctiveness (Decision T-331/12 dated 26 February 2014). Introduction In order to decide if a mark lacks the necessary distinctiveness or not, various aspects need to be taken into account. First of all, the court has to analyze the specific goods and services of the applied for trademark, and furthermore it has to determine if intended brand is capable to enable the average consumers to identify the product’s origin. Background of the Case and Subject Matter In the present case, the German applicant Sartorius Lab Instruments GmbH & Co. KG, filed for the following Community Trademark, a yellow curved line - so called “position mark” – as seen below:     The applicant is convinced that the yellow line (as seen above) at the bottom of an electronic screen is recognized by the average consumer. The applicant is not of the opinion that the customer perceives the yellow line as decorative element.  For these reasons, the applicant argued, the yellow curved line, should be registered as a trademark as the average, generally well-informed consumer will recognize the product’s origin. Decision of the EGC The EGC asserts that it is not unusual to include an element of color around a screen. Therefore the average customer does not connect a colored ornament with a special trademark. The yellow curved line does not have any recall value. Finally, the EGC decided the “yellow line” will not be recognized by the customers as an indication to the origin of the product. For this reason it cannot be registered as a Community Trademark.