EGC: Foldable box of a labour game protectable as a trademark

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The European General Court (EGC) rejected the application for registration as a Community Trademark (CTM) of a three-dimensional sign of the shape of a rectangular games box consisting of a system of sliding racks for assembly and disassembly, for games and toys, because it is devoid of any distinctive character (Case T‑547/13, Judgement of 8 October 2015).

Background of the case and subject matter

On 11 September 2012, the company Rosian Express SRL filed an application for registration for the following three-dimensional CTM Application (No.: 532940) at the Office for Harmonization in the Internal Market (OHIM) for, inter alia, games and toys:

In February 2013 the examiner rejected the application for registration. Therefore, the applicant lodged an appeal with OHIM against the examiner’s decision on 28 March 2013.

By decision of 11 July 2013, the Fifth Board of Appeal (BoA) of OHIM dismissed the appeal because the three-dimensional application lacks of any distinctive character.

Therefore, the Rosian Express SRL appealed further to the EGC.

Decision of the EGC

The EGC upheld the decision of the BoA.

Initially, the EGC stressed that the products are intended for general consumption and professionals. Therefore, the degree of knowledge of the relevant public varies from average to high.

Afterwards, the court came to the result that the application does not depart significantly from the norms or customs of the sector because it is common for games and toys to be packaged and sold in packaging made from different types of material including wooden boxes. Moreover, the way of unfolding and assembling the box does not differ significantly from the norms or customs of the sector.

Therefore, the shape of the box is no indicator of origin. Thus, the shape cannot be registered as a three-dimensional trademark.