A European Union trademark application for the packaging of a pastry product as a three-dimensional trademark was filed. It was disputed whether the union trademark application in the represented shape, referring to pastry goods in class 30, contains sufficient distinctiveness. Distinctiveness means that the goods or services of one company can differentiated from those of other companies, thus enabling an association of the goods or services to the respective company. A distinctiveness was rejected in the present case as the shape of the packaging was absolutely standardized, its bright brown color is typical for raw packaging and the transparent window is also widely known within the sector. Therefore, significant distinctive features must be present. The relevant consumers cannot perceive the slight deviations as distinctive features.

EUIPO Board of Appeal
Case number: R 1489/2018-2

June 18, 2020
Vanessa Bockhorni
Patent Attorney