EGC: The shape of the new Coca-Cola bottle cannot be protected as a trademark

The European General Court (EGC) ruled that the shape of the new Coca-Cola bottle cannot be protected as a three-dimensional trademark because it is devoid of any distinctive character (Case T-411/14, Judgement of 24 February 2016). Background of the Case and Subject Matter In December 2011, the famous Coca-Cola Company Ltd filed an application for registration of a Community Trademark (CTM) at the Office for Harmonization in the Internal Market (OHIM) for the following three-dimensional mark for - inter alia – metallic, glass and plastic bottles: In March 2014, OHIM rejected the application for registration on the ground that the trademark has no distinctive character in respect of the goods covered by the application. Especially, OHIM did not follow the Coca-Cola Company’s arguments that the trademark should be regarded as a natural evolution of its famous iconic bottle (the contoured bottle with fluting – see below). Therefore, the Coca-Cola Company appealed against the decision of OHIM. Decision of the Court  But, finally even the EGC followed the argumentation of OHIM’s argements. First, the court stated the consumer is accustomed to a wide range of variants of shapes of bottles. Therefore, consumers are, in general, not enable to see the shape of the bottle as an indication of its origin. The Coca-Cola bottle is no exception because - in contrast to the famous contoured Coca-Cola bottle with the fluting - the new bottle does not possess any characteristics that distinguish it from the other bottles which are available on the market. Secondly, the EGC noticed that Coca-Cola has failed to establish that the sign had acquired distinctive character through use. Therefore, the court decided to dismiss the action brought by the Coca-Cola Company.