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The Coca-Cola Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) - (24 Feb 2016)

Coca Cola’s bottles not recognisable enough

Intellectual Property Rights

The General Court of the European Court of Justice dismissed an application by Coca Cola for the registration of its three-dimensional sign (pictured) for its bottles. The Office for Harmonisation in the Internal Market (Trade Marks and Designs) had previously rejected Coca Cola’s application in 2014, not accepting arguments that Coca Cola’s ‘contour bottle without fluting’ had evolved naturally into the ‘contour bottle with fluting’ and which the relevant public associated with its famous iconic bottle.

The Court agreed with OHIM’s assessment that the bottle had not acquired distinctive character throughout the European Union in respect of a significant part of the relevant public. From surveys conducted in 10 Member States it emerged that only 48 per cent of people in Poland and 79 per cent in Spain recognised the bottle as belonging to Coca Cola. The Court was disdainful towards the surveys, which aside from being less than conclusive, failed to cover 17 other Member States. It refused extrapolating conclusions from the surveys conducted in a handful of Member States over the whole of the Union. It also discounted sales figures and advertising revenue data for having little probative value, and being littered with inconsistencies.


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