Coca Cola- Pepsi : The bottle neck

The shape of a product is usually one of the most recognizable aspects. Consumers usually recognize the product from a certain brand by its shape alone, and often do not even bother to read the label.  Despite this fact it is extremely difficult to register a shape mark in the Benelux. This was not always the case. Coca Cola, for example registered her elegantly shaped bottle as a shape mark many years ago.  

Not only does Coca Cola protect the secrets to her ingredients very well, virtually every aspect that concerns Coca Cola is well protected. This, of course, includes the shape of her bottles. When Pepsi introduced a new bottle in Australia Coca Cola was on high alert. Pepsi’s new bottle bore a striking resemblance to the bottle Coca Cola has been using since 1916.

A similar case once occurred in Holland. Coca Cola had just developed a new 1.5 liter bottle (and registered the shape as a trademark). After a few months Superunie introduced her new bottle for First Choice Cola, which had essentially the same form. Eventually Superunie caved under the pressure of a pending lawsuit and changed the shape of her bottles.
 

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?