The shape of the BOUNTY chocolate bar is not a brand. This follows from the judgment of 8 July by the European Court of First Instance. The shape of the BOUNTY was first accepted as a Community Trademark, but a German competitor of Mars, Inc filed a cancellation action. The Board of Appeal of OHIM accepted the objections, and the CFI upheld this decision.
As I discussed yesterday in a radio interview in BNN Today, a brand can only be registerd if it is distinctive for the goods or services involved, in this case 'snack foods'. The CFI holds that the BOUNTY bar is in fact not different from a regular chocolate bar. No distinctive character, no CTM.
Then Mars could only be saved if it established that the brand has, after registration, acquired a distinctive character in relation to the goods or services for which it is registered. This would be the case if the average consumer identifies the BOUNTY shape as originating from a particular undertaking, thus being able to distinguish that product from goods of other undertakings. But the Mars group only had evidence concerning the UK, Belgium, France, Germany, Italy and the Netherlands. That is not enough to substantiate that the sign would have acquires distinctive character through use in all parts of the EU where it had no distinctive character from the start.
The decision proves again the very high standards required for proving that a sign had acquired distinctive character through use.
Maarten Haak
Click here for Maarten Haak's radio interview of 8 July on BNN Today (Radio 1).
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The shape of the BOUNTY chocolate bar is not a brand. This follows from the judgment of 8 July by the European Court of First Instance. The shape of the BOUNTY was first accepted as a Community Trademark, but a German competitor of Mars, Inc filed a cancellation action. The Board of Appeal of OHIM accepted the objections, and the CFI upheld this decision.
As I discussed yesterday in a radio interview in BNN Today, a brand can only be registerd if it is distinctive for the goods or services involved, in this case 'snack foods'. The CFI holds that the BOUNTY bar is in fact not different from a regular chocolate bar. No distinctive character, no CTM.
Then Mars could only be saved if it established that the brand has, after registration, acquired a distinctive character in relation to the goods or services for which it is registered. This would be the case if the average consumer identifies the BOUNTY shape as originating from a particular undertaking, thus being able to distinguish that product from goods of other undertakings. But the Mars group only had evidence concerning the UK, Belgium, France, Germany, Italy and the Netherlands. That is not enough to substantiate that the sign would have acquires distinctive character through use in all parts of the EU where it had no distinctive character from the start.
The decision proves again the very high standards required for proving that a sign had acquired distinctive character through use.
Maarten Haak
Click here for Maarten Haak's radio interview of 8 July on BNN Today (Radio 1).