Community Trade Mark Board of Appeal, Alicante
What happened: Procter & Gamble and Mag Instruments tried to register the shape of respectively their dishwasher powder tablets and torches as 3D Community Trade Marks.
Topic: Trade marks
Who: Procter & Gamble, France and Mag Instruments Inc of the US.
When: First half of 2000
Where: Community Trade Mark Board of Appeal, Alicante
Procter & Gamble and Mag Instruments tried to register the shape of respectively their dishwasher powder tablets and torches as 3D Community Trade Marks. Both applications were rejected on grounds of lack of distinctiveness. P&G sought to increase the alleged non functionality of the square tablet shape by making it white with green speckles. This cut no powder with the Board, who felt that far from being distinctive and non functional, a simple geometric shape like a square had obvious advantages in terms of manufacture, practicality and eye appeal and should not be the subject of a monopoly right owned by just one manufacturer in the sector. The green speckles and white were of colours often associated with washing and cleanliness and speckles were often functional in products of this kind.
A similar fate met attempts to register the shape of the famous "Mag-Lite" range of torches. The Board observed that to be registrable as a trade mark, a product shape must contain features that set it apart from the usual shape of a product to such an extent that a potential purchaser would see it as an indication of origin and not merely as the product itself. In this case, the public was so used to seeing different shapes and sizes of torch, the Board said, that one particular torch shape was likely to signify nothing more than "this is another torch."
Why this matters:
The introduction of the new EU trade mark registration regime in the eighties was greeted with excited comments about a new age of registered product shapes, smells and even jingles. The reality, however, has been rather less of a departure from the pre directive landscape, with the registration authorities reluctant to confer what are monopoly rights in respect of product aspects which are, after all, more appropriately protected by design right.