Mountain top or Marlboro roof

A brand is more than just a word or a logo. The design of (or a part of) the packaging can also function as a sign of recognition. Because consumers can recognize a brand in this design, companies often register these designs. Clever, because copy-cats are always lurking.


When Masis Tabak applies for a trademark for its cigarette packaging, Philip Morris successfully objects based on Marlboro's red roof which is registered as a Union trademark. In the proceedings, the reputation of the red roof is not at issue. Masis disputes that the marks are similar. Masis' logo consists of a stylised representation of two mountains, Mount Ararat (the mountain where Noah's Ark landed).

The General Court does not follow this. In the Marlboro logo, the text drops out. Actually, one sees a red roof lying on a white triangle. Masis' trademark has a similar dark shape at the top resting on two white triangles. The public does not recognize Mount Ararat in the shape. In the eyes of the relevant public the marks are similar.

The fact that in the application, Masis described that the logo represents two mountains is irrelevant. What matters is the perception of the consumer confronted with the sign, not the intentions of the applicant. The fact that the mark is registered in many other countries is not a valid reason for accepting the mark in the EU. The Court confirms that the mark was justly refused.


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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?