FAQ

The revival of the shape-mark

There are more possible trademarks than just a logo or a word. Other characteristics also have the ability to distinguish one vendor’s offering from another one’s. A shape, sound, motion picture sequence or a pattern. However in practice it can prove difficult to get these kinds of marks registered. The authorities often assume that the consumer does not perceive these as a trademark, the shape is seen as commonplace. However it looks like this might change in the near future.

For example, Bacardi succeeded in registering its bottle with red wax-seal, white cap and banner logo as a trademark (without Bacardi written on it). The cap, the seal and the shield are no longer seen as purely decorative and the combination is enough to distinguish the bottle from other vendors’ bottles. A request for an amphora shaped bottle also made it to registration, by virtue of the narrowing part in the middle. These rulings seem to usher in a new policy. Enough reason for companies to give it another try and claim special shapes or designs as a trademark. The consumer has perceived them as trademarks for years, possibly the trademark authorities will now do so too.

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IP Quiz

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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?

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