Even Coca-Cola can have trouble registering a shape as a trade mark.

Last month, we reported on the English High Court’s decision dismissing Nestle’s appeal against a decision to refuse to register the 3D shape of the four-finger Kit Kat chocolate bar as a trade mark. Now the European General Court is also getting in on the action affirming the decision of The Office for Harmonisation in the Internal Market (OHIM), soon to be renamed the EU Intellectual Property Office (EU IPO), to refuse to register the shape of the Coca Cola bottle as a trade mark because it lacks distinctive character.

One might think that the Coca-Cola bottle shape that we all know is distinctive but, in this case, the application was for the shape of a plain Coca Cola bottle, that is, without the narrow grooves or fluting down the side. Coca Cola’s appeal was dismissed on the basis that the shape did not function to identify the source or origin of the goods. The lack of eye-catching fluting was fatal to the application as, without it, the bottle could not be distinguished from other similar shaped bottles in the marketplace.

This case and the Nestle Kit Kat shape case illustrate just how difficult it can be to register a shape as a trade mark. Sometimes, even if you follow the rules and implement your strategy early to register the trade mark, you may still not be able to get your trade mark registered. That’s not to say you shouldn’t try; it just means that you need to choose a shape that is unusual enough to act as a distinctive trade mark in its own right or with minimal evidence of use. 

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