Coca-Cola applied in 2014 to the Office for Harmonisation in the Internal Market (OHIM) to register a three-dimensional sign in the shape of a 'contour bottle without fluting' as a community trade mark. This would cover metallic, glass and plastic bottles, the General Court said.
OHIM rejected the application in March 2014, saying that the mark was "devoid of any distinctive character in respect of the goods covered" and that it did not accept Coca-Cola's argument that the contour bottle without fluting was a natural evolution of its famous bottle with fluting.
Coca-Cola had asked the General Court to annul OHIM's decision. However, the Court confirmed OHIM's opinion that the bottle "does not possess any characteristics that distinguish it from other bottles available on the market. The mark sought is thus a mere variant of the shape of a bottle which does not enable the consumer to distinguish Coca-Cola’s goods from those of other undertakings".
The Court had "serious doubts" about the reliability of surveys from Coca-Cola that purported to show that the mark applied for had acquired distinctive character throughout the European Union.
The surveys were not carried out by a recognised market research company that Coca-Cola claimed they had been, but by a former director of that company who set up as an independent consultant, the Court said. The surveys were carried out in less than half of member states, asked leading questions, and percentages given in the results did not and up properly, it said.
The sign therefore does not have the "distinctive character" needed for registration as a trade mark, and Coca-Cola has failed to show that it has acquired this distinctive character through use, the Court said.
Intellectual property expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com said: "It remains a challenge for manufacturers and retailers to obtain trade mark protection for the shape of their key products. Coca-Cola led the way when it obtained protection for its iconic, curvaceous, fluted contour glass bottle back in 1980. However, in its latest attempt to extend this protection to a less unique bottle shape, Coca Cola failed to prove that its standard plastic bottle had enough distinctive character".
"Trade marking a shape can be a tricky business. There are numerous factors that can go against a grant, for instance if the shape is borne out of the nature of the product, if it adds substantial value to the product or if it takes on a form that is necessary to obtain a technical result. It’s easy to understand why it’s so important for businesses to try to protect some of their leading products as trade marks because trade mark protection can last forever, but we’ve already seen a number of failed attempts like this recently and I expect that we’ll continue to see a lot more," he said.