EUIPO rejects Grupo Bimbo’s 3D Trade Mark application

Veröffentlicht am: 28. June, 2016

EUIPO and the General Court said No: Mexican multinational bakery product manufacturing company “Grupo Bimbofailed to protect their shape for a chocolate candy. The mark lacked distinctive character and furthermore rejected other applicant´s arguments. Read the whole story in our article.

Grupo-Bimbo-Chocolate-Bar-3D-TrademarkIt’s like a punch in the face for the Mexican multinational bakery product manufacturing company: Grupo Bimbo applied for a three-dimensional mark for a marshmallow candy in Classes 5, 29 and 30. To be more precise:

Class 5: Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides.

Class 29: Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats.

Class 30: Coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastries and confectionery; edible ices; sugar, honey, treacle; yeast, baking-powder; salt; mustard; vinegar, sauces (condiments); spices; ice.

 

No distinctive feature and the possibility of mixing up things

Although the handed in shape does not look like the “common” chocolate bar, the EUIPO rejected the mark (case T-240/15) on the grounds that the mark lacked distinctive character according to article 7(1) b) of the EUTMR because it considered that the mark was not fundamentally different from certain basic shapes of the products. The Board of Appeal took the view that the mark was more a variant of the basic shapes or had a utilitarian function. The Board of Appeal took the view that the mark was more a variant of the basic shapes or had a utilitarian function.

The General Court dismissed the appeal. First, it rejected the applicant´s argument that the appropriate level of public attention was higher because teenagers are a sophisticated and picky consumer, like to create trends for social prestige and their consumption would be particularly motivated by the “desire to eat something good and different.

Second, the fact that the the bar was composed of four circular portions did not confer distinctive character since the circular shape was a basic geometric shape and that the relevant public is accustomed to find and consume chocolate bars divided into juxtaposed portions.

Ricolino-Bululubu-Chocolate-Candy

For pharmaceuticals, the Board of Appeal considered that the mark was devoid of any distinctive character since the consumer would perceive the mark as a variant of these medicinal tablets tablets interconnected so as to separate them from each other .

The Board of Appeal found that, for consumers, the mark in question represented, as with other tablets of medicinal tablets, a row of rounded pellets, interconnected and whose junction allowed to separate each chip through the party opposing the least resistance.

For food, dietary and pharmaceutical animal, the Board of Appeal found that the mark in question was devoid of distinctive character when these products could, from the perspective of the consumer (veterinary or average consumer expert), is in the form of bar, like that shown in the mark, that is to say, alignment of product portions connected together but detachable in the area with the least strength.

 

Mars Inc. was more fortunate in protecting their shape for chocolate bars

That it is possible to trademark a candy (chocolate) bar shape showed Mars Inc. with their “Bounty” bar that is protected since 1998. In a recent decision of the German Federal Supreme Court in which  a turkish company infringed the trade mark rights of Mars Inc.’s coconut candy Bounty. The case can be considered a landmark decision since a 10 year old consumer survey played an important role in the decision. Read more about the “Bounty-Case” here.

Bounty-3D-Trademark

 

Do you need assistance in protecting your product as a 3D Trade Mark?

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Source: Decision at curia.europa.eu // www.marques.org

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