The General Court of the European Union has rejected a Community Trade Mark application made by The Coca-Cola Company for the shape of its contour bottle without fluting.
Coca-Cola filed an EU-wide trade mark application for a three-dimensional sign in relation to a range of goods including "metallic, glass and plastic bottles" in December 2011. In March 2014, the OHIM rejected the application for registration on the ground that the mark sought lacked the necessary distinctive character in respect of the goods covered by the application. The OHIM rejected out of hand the argument made by Coca-Cola that the mark was a natural evolution of its iconic contour bottle with fluting.
Coca-Cola appealed the decision of the OHIM and sought an order from the General Court for the annulment of the original decision. The General Court has dismissed Coca-Cola's action in its entirety and confirmed that the bottle does not possess any characteristics that distinguish it from other bottles on the market. The mark sought to be registered is merely a variation of the shape of a bottle which is not capable of distinguishing the goods of Coca-Cola from others. Consequently, the mark for which registration was sought is devoid of distinctive character. Coca-Cola failed to establish that the sign had acquired distinctive character through use.
In the absence of evidence that the bottle for which registration was sought is unique to Coca-Cola, either inherently or as a result of the use that has been made of it, the decision of the General Court seems the right one. To grant a trade mark in these circumstances would give a perpetual monopoly to a company in the shape of a bottle that is either commonplace or, at least, very close to the bottles of others. Such a monopoly would be an abuse of the trade mark registration system in the European Union. It remains to be seen whether Coca-Cola appeals the decision of the General Court to the Court of Justice of the European Union.