Trademarks

• Author: International Law Group

In October 1998, Procter & Gamble Company of Ohio (P/G) applied to the E.C.'s Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to register two detergents in tablet form as distinctive Community trade marks. The tablets are three-dimensional in shape, one square and the other rectangular, with "chamfered" edges, beveled or slightly rounded corners, and with speckles and inlays on the upper surfaces. In March 2000, the OHIM declined to register the detergents as Community trade marks.

When P/G had gone to the Court of First Instance (CFI), it had partially dismissed P/G's actions for annulment of the OHIM decisions of March 2000. The CFI pointed out that Article 7(1)(b) of Regulation No. 40/94 provides that trade marks that lack any distinctive character do not qualify for registration.

The CFI noted that the mark does not have to convey exact information about the identity of the product's manufacturer or the supplier of the services. It need only make it possible for members of the public concerned [1] to distinguish the product or service that it designates from those which have a different trade origin, [2] to conclude that all the products or services that it designates have been made, sold or supplied under the control of the mark's owner and [3] to rest assured that the owner is accountable for their quality.

"The three-dimensional shape for which registration has been sought ... is one of the basic geometrical shapes and is an obvious one for a product intended for use in washing machines or dishwashers.

The slightly rounded corners of the tablet are dictated by practical considerations and are not likely to be perceived by the average consumer as a distinctive feature of the shape claimed, capable of distinguishing it from other washing machine or dishwasher tablets. Likewise, the chamfered edges are a barely perceptible variant on the basic shape and have no impact on the overall impression made by the tablet."

"As regards the presence of speckles and a darker triangular inlay in the centre of the tablet, ... [the Board] remarked, when dealing with the ... inlay, that the use of different colours was commonplace for the goods in question ... That statement demonstrates that the Board of Appeal took the view that the speckles were not capable of rendering the mark applied for distinctive, since what was involved was a commonplace feature. The contested decision is therefore sufficiently reasoned in...