[[{"type":"media","fid":"4571","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignright","typeof":"foaf:Image","style":"","width":"318","height":"145"}}]] The European General Court (EGC) decided that the word mark “CHOICE” cannot be registered as a trademark because it is just a descriptive indication and therefore it is devoid of any distinctive character (Case T‑431/14, Judgment of 22 October 2015). Background of the Case and Subject Matter On 11 April 2013, Volkswagen AG filed an application for registration of a Community Trademark (CTM) at the Office for Harmonization in the Internal Market (OHIM). The mark in respect of which registration was sought is the word mark “CHOICE” (No.: 011769163) for – among others – cars. Decision of previous Instances In August 2013, the examiner of OHIM rejected the application for registration. The examiner stated that the term “CHOICE” could be understood as an adjective or as a noun. Referring to the online version of the Oxford dictionary, the term “CHOICE” as an adjective means “top quality” or “exquisite” and as a noun it stands for “the act of choosing” or “selection”. The meaning of the adjective “CHOICE” is just a purely descriptive indication. Therefore, the examiner came to the result that “CHOICE” is devoid of any distinctive character. Volkswagen appealed against the decision of OHIM. But, the Board of Appeal (BoA) followed OHIM’s line of arguments. Therefore, the applicant appealed further to the EGC. Decision of the EGC The EGC upheld the decision of the BoA. First, the court underpins the argumentation of the previous instances by determining that consumers could perceive the mark applied for as an adjective. Also, the court underlines that the applicant has not provided any evidence showing that the aforementioned meanings of the adjective “CHOICE” were wrong. Secondly, the court is of the opinion that also the noun “CHOICE” is only a descriptive indication of advertising and praise. Regarding this, the court pointed out that “CHOICE”, with the meaning “selection” carries the connotation of a particular quality which is the basis of every choice. Therefore, “CHOICE” is a laudatory term in everyday language and the relevant public just perceives it as an indication of high quality and a mere praise, but, not as an indicator of origin. Consequently, the word “CHOICE” as an adjective as well as a noun is devoid of any distinctive character.      

The General Court (EGC) upheld the decision by the Board of Appeal (BoA) regarding the invalidity proceedings in respect of the Yves Saint Laurent SAS (YSL) registered Community designs (RCD) 000613294-0001 and 000613294-0002. The EGC held that the contested designs had individual character with respect to the H&M’s prior design and therefore rejected the applications for a declaration of invalidity. (Cases T-525/13 and T-526/13, Judgment of 10 September 2015) Background of the case and subject matter On 30 October 2006 YSL filed an application for two Community designs with the Office of Harmonisation in the Internal Market (OHIM). The designs were intended to be applied to ‘handbags’ in Class 03-01 of the Locarno Agreement Classification. The designs were both represented according to six views as follows: RCD 000613294-0001                                                         RCD 000613294-0002 [[{"type":"media","fid":"4558","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2369","typeof":"foaf:Image","style":"","width":"150","height":"164"}}]] [[{"type":"media","fid":"4559","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2370","typeof":"foaf:Image","style":"","width":"147","height":"164"}}]] [[{"type":"media","fid":"4564","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2375","typeof":"foaf:Image","style":"","width":"122","height":"164"}}]][[{"type":"media","fid":"4565","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2376","typeof":"foaf:Image","style":"","width":"125","height":"164"}}]] [[{"type":"media","fid":"4560","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2371","typeof":"foaf:Image","style":"","width":"150","height":"101"}}]] [[{"type":"media","fid":"4561","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2372","typeof":"foaf:Image","style":"","width":"150","height":"99"}}]] [[{"type":"media","fid":"4566","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2377","typeof":"foaf:Image","style":"","width":"125","height":"164"}}]] [[{"type":"media","fid":"4567","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2378","typeof":"foaf:Image","style":"","width":"158","height":"150"}}]] [[{"type":"media","fid":"4562","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2373","typeof":"foaf:Image","style":"","width":"150","height":"205"}}]] [[{"type":"media","fid":"4563","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2374","typeof":"foaf:Image","style":"","width":"150","height":"107"}}]] [[{"type":"media","fid":"4568","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2379","typeof":"foaf:Image","style":"","width":"143","height":"205"}}]] [[{"type":"media","fid":"4569","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone wp-image-2380","typeof":"foaf:Image","style":"","width":"132","height":"205"}}]] On 3 April 2009 H&M Hennes & Mauritz BV & Co. KG (H&M) filed with OHIM applications for a declaration of invalidity in respect of the contested designs, claiming that the designs had no individual character within the meaning of Article 6 of Regulation No 6/2002. In support of the applications, H&M invoked the earlier design reproduced below: [[{"type":"media","fid":"4570","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image wp-image-2381 aligncenter","typeof":"foaf:Image","style":"","width":"295","height":"402"}}]] In 2011 the Cancellation Division rejected the applications for invalidity. H&M filed a notice of appeal with OHIM and by decisions of 8 July 2013 the BoA dismissed the appeals. According to the BoA the earlier design and the contested designs had features in common but the differences in the shape, structure and surface finish were significant and differentiated the two bags for the informed user. The BoA found that the informed user in the present case was neither an average purchaser of handbags nor a particularly attentive expert, but someone in between who is familiar with the product in accordance with the level of attention established by case-law. H&M did not dispute the BoA’s findings regarding the informed user. However, H&M appealed to the EGC claiming that it was erroneously concluded, and without sufficient reasons being given by the BoA that the high degree of freedom of the designer did not have any impact on the finding that the designs at issue produced a different overall impression on the informed user. It also claimed that it was erroneously concluded that even though it was accepted that the designer had a high degree of freedom, that the differences between the designs at issue were significant enough to create a different overall impression. Decision of the EGC        The EGC upheld the decision of the BoA. Firstly, the EGC rejected H&M’s claim that the BoA had not stated in a sufficiently clear and unequivocal manner the reasoning on which the decision was based on. Secondly, the EGC examined the requirements of individual character and the role of the designer’s degree of freedom in that consideration. Under Article 6(1)(b) of Regulation No 6/2002, a registered Community design is to be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing the application for registration or, if a priority is claimed, the date of priority. Article 6(2) of that regulation states that, in assessing individual character, the degree of freedom of the designer in developing the design is to be taken into consideration. The EGC stated that the assessment of the individual character of a Community design is the result of a four-stage examination. The examination consists in deciding upon

1. the sector to which the products in which the design is intended to be incorporated or to which it is intended to be applied belong
2. the informed user of those products in accordance with their purpose and, with reference to that informed user, the degree of awareness of the prior art and the level of attention in the comparison of the designs
3. the designer’s degree of freedom in developing his design; and,
4. the outcome of the comparison of the designs at issue, taking into account the sector in question, the designer’s degree of freedom and the overall impressions produced on the informed user by the contested design and by any earlier design which has been made available to the public.

In the present case, the EGC confirmed that the degree of freedom was not the starting point of the assessment of the individual character but that it was a factor that had to be taken into consideration in that assessment. The overall impressions produced by the contested designs and the earlier design differed as to three features which decisively influenced their overall appearance, namely the overall shape, structure and the surface finish of the bag. The EGC held that these differences were significant and that the similarities between them were insignificant in the overall impression which they produce. Consequently the EGC confirmed the BoA’s assessment that the contested design produced an overall impression on the informed user which was different from that produced by the earlier design.

From 31 October 2015 the Madrid System operates as a single treaty system and the Protocol governs all the designations in the International Register.  All new international applications shall be filed using the MM2 International Application form. On 31 October 2015, the Madrid Protocol entered into force in Algeria, which was the last remaining Contracting Party of the Madrid Union to be a member of the Madrid Agreement only. Following the entry into force of the Madrid Protocol in Algeria, the Protocol will apply in the relationships between all the Contracting Parties of the Madrid Union.  Therefore, all Madrid System users will benefit from the flexibilities and features of the Protocol. Key features of the Protocol now available to all users:

• Filing of international applications based on national/regional applications or registrations, via a single form (MM2)
• Free choice of Office of origin on the basis of commercial establishment, domicile or nationality
• Transformation of international registrations into national or regional trademarks following their cancellation due to the basic mark ceasing to be in effect
• Choice of presenting to either WIPO or the Office of the holder any subsequent designations and requests for the recording of cancellations and renunciations
• Renewal of international registrations for periods of ten years

Forms MM1 and MM3 are no longer applicable. Any international application filed using forms MM1 or MM3 will be considered irregular in accordance with the Common Regulations. For more information please click on the following link: WIPO: Information Notice NO. 39/2015 Practical Consequences of Algeria’s Accession to the Madrid Protocol

[[{"type":"media","fid":"4556","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image wp-image-2353 alignright","typeof":"foaf:Image","style":"","width":"350","height":"182"}}]] Interbrand was founded by John Murphy in 1974 as one of the first brand consultancy companies. Meanwhile, it has approximately 31 offices in 27 countries and is one of the largest and oldest brand consultancy companies around the world. Every year, Interbrand conducts and publishes various studies relating to brands, their value and the impact on companies and consumers. Interbrand’s 16th annual Best Global Brands Report was released on 5 October 2015. Brands at the Speed of Life The issue of the Best Global Brands report this year is “Brands at the Speed of Live”: http://interbrand.com/views/brands-at-the-speed-of-life/ Analysis The procedure for ranking the Best Global Brands is based on three key components that contribute to a brand’s cumulative value: an analysis of the financial performance of the branded products or services, the role the brand plays in influencing customer choice and the brand’s competitive strength. Results 2015 The 40 Best Global Brands can be found below: [[{"type":"media","fid":"4557","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image aligncenter size-full wp-image-2354","typeof":"foaf:Image","style":"","width":"600","height":"371"}}]]   As you can see, Apple and Google maintain their first and second positions for the third year in a row and each exceed 100 billion US-dollars in brand value. This year five brands are listed at the ranking for the first time: Lego (Rank 82), PayPal (Rank 97), MINI (Rank 98), Moët & Chandon (Rank 99), and Lenovo (Rank 100). After Huawei (Rank 39), which already appeared in the ranking of 2014, Lenovo is the second Chinese brand to appear on the Best Global Brands ranking. The top risers this year are Facebook (Rank 23, +54%), Apple (Rank 1, +43%), Amazon (Rank 10, +29%), Hermès (Rank 41, +22%) and Nissan (Rank 49, +19%). Technology and automotive brands dominate this year’s ranking by holding 28 of 100 positions. In particular technology brands dominate by collectively making up more than a third (33.6%) of the total value of all 100 brands. For more information on the 2015 ranking, please click on the following link: http://interbrand.com/best-brands/best-global-brands/2015/ranking/

On 6 October 2015 the European Parliament (EP) adopted a resolution on the possible extension of geographical indication (GI) protection of the European Union (EU) to non-agricultural products. The resolution follows a stakeholder consultation concluded in October 2014 which favored an EU system of protection based on geographical indications for non-agricultural products. The Commission is called to propose without delay a legislative proposal for a single European system of GI protection for non-agricultural products. [[{"type":"media","fid":"4555","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2348 aligncenter","typeof":"foaf:Image","style":"","width":"431","height":"149"}}]] Background of the resolution Geographical indications are distinctive signs which identify a good as originating in the territory of a particular country, or region or locality in that country, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin. In the EU protection for GI’s can be sought for agricultural products and foodstuffs, wine and spirit drinks. However, in some Member States, non-agricultural geographical indications are protected by national laws, which results to different degrees of protection within the EU. The EP states that the EU should adopt legislation on non-agricultural GIs, such as typical regional handicrafts. The legislation should be adopted in order to fully exploit the positive economic effects of protecting the distinctiveness and quality of such products, provide consumers with reliable information on their place and method of production, and preserve the know-how and jobs relating to them. The traditional know-how and techniques are considered to form part of the EU’s cultural heritage and consumers are seen to show a growing interest not just in product safety, but also, in the origins of products, their authenticity and the methods by which they are produced. The Parliament also considers that the extension of protection would bring positive effects on trade relations with third countries. General principles and the proposed registration process The resolution calls on the Commission to apply the lessons learned from the experience gained in the protection of GI’s in the agricultural and food sectors. The aim is to create a new system which is based on best practices and non-discriminatory principles and is transparent, effective, responsive and free of unnecessary administrative burdens and deterrent costs for producers who voluntarily decide to register a product under a geographical indication scheme. The costs and red tape for businesses is to be kept to a minimum in the new system. A broad definition that would make it possible to recognize the link between a product and the area covered by the GI is favored and the system of protection should enable the inclusion of names which are unambiguously associated with a given place. Also non-verbal signs and symbols that are unmistakably associated with a particular region should be included. Even though a broad definition is preferred, some indications, for instance generic terms or homonyms, have to be excluded from GI protection. The Parliament proposes a compulsory registration procedure to provide greater security, especially as regards the enforcement of rights in the event of a dispute. It is also stressed that the system must be accompanied by the creation of a single standardized and public European register for non-agricultural products benefiting from geographical indication protection. At least the following criteria should be included in the specifications of the products: raw materials used, description of the production process, proof of the link with the territory, and elements of corporate social responsibility. Quality checks after the registration are considered to be necessary in order to make sure that the criteria on which the status was based are still being met. The resolution is now forwarded to the Council and the Commission for the preparation of a legislative proposal. It is also proposed that the Commission examines the possibility of transferring the registration of agricultural and non-agricultural GIs to the OHIM.

European Trade Mark and Design Network (ETMDN) [[{"type":"media","fid":"4554","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image wp-image-2329 alignright","typeof":"foaf:Image","style":"","width":"136","height":"65"}}]]is a network connecting national and regional Intellectual Property Offices, User Associations and other IP Organisations. The network has on 2 October 2015 published a communication on a common practice in relation to when a figurative mark containing purely descriptive or non-distinctive words passes the absolute grounds examination. The aim of the common practice is to establish and communicate clarity, legal certainty, quality and usability for both applicant and office. According to Article 3(1)(b) and (c) of the Directive 2008/95/EC trade marks which are devoid of any distinctive character, and trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or services, shall not be registered, or if registered shall be liable to be declared invalid. The distinctiveness of the mark is assessed by reference to the goods or services in respect of which registration is sought and by reference to the perception of the relevant public. The common practice introduces principles to be generally applied and to cover large majority of cases. The distinctiveness of the mark is still assessed on a case-by-case basis and the principles serve as guidance in order to ensure that the different offices come to a similar outcome. In order to determine if the threshold of distinctiveness is met due to the figurative features in the mark the following criteria are considered:

A. With respect to the word elements in the mark:

• Typeface and font
• Combination with colour
• Combination with punctuation marks and other symbols
• Position of the word elements (sideways, upside-down, etc.)

Non-distinctive examples:

[[{"type":"media","fid":"4553","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2328 alignnone","typeof":"foaf:Image","style":"","width":"352","height":"53"}}]]

Distinctive examples:

[[{"type":"media","fid":"4552","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2327 alignnone","typeof":"foaf:Image","style":"","width":"361","height":"36"}}]]

B. With respect to the figurative elements in the mark:

• Use of simple geometric shapes
• The position and proportion (size) of the figurative element in relation to the word element
• Whether the figurative element is a representation of, or has a direct link with, the goods and/or services
• Whether the figurative element is commonly used in trade in relation to the goods and/or services applied for

Non-distinctive examples:

[[{"type":"media","fid":"4551","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2326 alignnone","typeof":"foaf:Image","style":"","width":"477","height":"86"}}]]

Distinctive examples:

[[{"type":"media","fid":"4550","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2325 alignnone","typeof":"foaf:Image","style":"","width":"188","height":"72"}}]]

C. With respect to both the word and figurative elements in the mark:

• How combinations of the criteria affect distinctiveness

Non-distinctive examples:

[[{"type":"media","fid":"4549","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2324 alignnone","typeof":"foaf:Image","style":"","width":"202","height":"45"}}]]

Distinctive examples:

[[{"type":"media","fid":"4548","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image size-full wp-image-2323 alignnone","typeof":"foaf:Image","style":"","width":"428","height":"48"}}]] The Common Practice will take effect within three months of the date of publication of the Common Communication. Germany has implemented the common practice both for applications pending on the implementation date and applications filed after the implementation date. For invalidity proceedings the common practice has been implemented only for the requests for invalidity of trademarks which were examined under the common practice. The complete communication with more examples of distinctive and non-distinctive elements can be found here.

The Court of Justice of the European Union (CJEU) has given a preliminary ruling on questions relating to Nestlé’s three-dimensional trademark application representing the shape of a four finger chocolate-coated wafer without the embossed words Kit Kat. The questions were forwarded to the CJEU by English courts (Case C‑215/14 Judgement of 16 September 2015). Background of the case and subject matter The product was placed on the market in the United Kingdom in 1935; in 1937 the name of the product was changed to ‘Kit Kat Chocolate Crisp’, and then shortened to ‘Kit Kat’. In 1988 the company was acquired by Nestlé. On 8 July 2010 Nestlé filed an application (No.: UK00002552692) for registration of the three-dimensional sign as a trade mark in the United Kingdom in respect of the following goods in class 30: ‘Chocolate; chocolate confectionery; chocolate products; confectionery; chocolate-based preparations; bakery goods; pastries; biscuits; biscuits having chocolate coating; chocolate coated wafer biscuits; cakes; cookies; wafers’.

[[{"type":"media","fid":"4547","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image alignnone size-full wp-image-2319","typeof":"foaf:Image","style":"","width":"293","height":"159"}}]]

The Trade Marks Registry of the United Kingdom Intellectual Property Office accepted the application. However, on 28 January 2011, Cadbury filed a notice of opposition to the application for registration. The examiner of the United Kingdom Intellectual Property Office found that the trade mark at issue was devoid of inherent distinctive character and rejected the application in respect of all goods except ‘cakes’ and ‘pastries’. Both Nestlé and Cadbury appealed against the decision. The High Court of Justice of England & Wales referred the following questions to the Court of Justice for a preliminary ruling:

1. In order to establish that a trade mark has acquired distinctive character following the use that had been made of it within the meaning of Article 3(3) of Directive 2008/95 ..., is it sufficient for the applicant to prove that at the relevant date a significant proportion of the relevant class of persons recognise the mark and associate it with the applicant’s goods in the sense that, if they were to consider who marketed goods bearing that mark, they would identify the applicant; or must the applicant prove that a significant proportion of the relevant class of persons rely upon the mark (as opposed to any other trade marks which may also be present) as indicating the origin of the goods?
2. Where a shape consists of three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result, is registration of that shape as a trade mark precluded by Article 3(1)(e)(i) and/or (ii) of Directive 2008/95 ...?
3. Should Article 3(1)(e)(ii) of Directive 2008/95 ... be interpreted as precluding registration of shapes which are necessary to obtain a technical result with regard to the manner in which the goods are manufactured as opposed to the manner in which the goods function?

Decision of the CJEU The CJEU found it necessary to change the order in which the questions are to be examined, first analysing the second and third questions and then examining the first question.

1. Article 3(1)(e) of Directive 2008/95/EC must be interpreted as precluding registration as a trade mark of a sign consisting of the shape of goods where that shape contains three essential features, one of which results from the nature of the goods themselves and two of which are necessary to obtain a technical result, provided, however, that at least one of the grounds for refusal of registration set out in that provision is fully applicable to the shape at issue.
2. Article 3(1)(e)(ii) of Directive 2008/95/EC must be interpreted as referring only to the manner in which the goods at issue function and it does not apply to the manner in which the goods are manufactured.
3. In order to obtain registration of a trade mark which has acquired a distinctive character following the use which has been made of it within the meaning of Article 3(3) of Directive 2008/95, regardless of whether that use is as part of another registered trade mark or in conjunction with such a mark, the trade mark applicant must prove that the relevant class of persons perceive the goods or services designated exclusively by the mark applied for, as opposed to any other mark which might also be present, as originating from a particular company.

The national proceedings will now resume and the UK High Court will give its final decision on the matter in the near future.

LexDellmeier IP Law Firm is looking for a German qualified Attorney at Law (Rechtsanwalt/Rechtsanwältin) as of 1 March 2016 or earlier. For more information please see our ad in German under: https://lexdellmeier.wordpress.com/jobs/ [[{"type":"media","fid":"4098","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image aligncenter size-large wp-image-2311","typeof":"foaf:Image","style":"","width":"600","height":"349"}}]]

This year LexDellmeier has accepted two interns through the European Law Student’s Association (ELSA) Student Trainee Exchange Programme. It is my pleasure to be working with the LexDellmeier team from late-October until Christmas. My name is Nina Seitz and I come from Helsinki, Finland. I am currently in my fourth year of law school in the University of Helsinki. Before my studies in law I have completed a Bachelor’s Degree in Economics. I started working in the field of Intellectual Property already during my studies in economics. After a few years of working as a trademark and design assistant I decided to pursue a career in the legal field. During my law studies I have continued working for an IP law firm in Helsinki, mainly focusing on trademark and design matters. In order to gain some international experience I spent a year studying at the University of Warwick in England. I have also volunteered at a conference held by the International Association for the Protection of Intellectual Property (AIPPI) in Helsinki in 2013 and I am a student member of The International Trademark Association (INTA). Having been interested in IP law from the start of my studies I was delighted to be offered this opportunity to work for an intellectual property law firm in Munich. During my stay in Germany my aim is to improve my language skills both in English and in German. I am looking forward to expanding my viewpoints and receiving more in-depth knowledge about the German and EU trademark systems. Besides deepening my knowledge of IP Law, I am also excited to meet new people and to get to know the city of Munich and the local culture.

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: [[{"type":"media","fid":"4546","view_mode":"media_large","instance_fields":"override","attributes":{"class":"media-image wp-image-2305 aligncenter","typeof":"foaf:Image","style":"","width":"226","height":"256"}}]] 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.