Intellectual Property

October 23, 2017

3D chocolate marks decision annulled: Germany SC

3D chocolate

The German Federal Court of Justice (Bundesgerichtshof) has annulled two decisions by the Federal Patent Court (Bundespatentgericht) that had blocked 3D trademarks for chocolate packaging.

The decision remanded the case to the Patent Court.

The marks were described as showing “the front and back of a neutral square package with a square packaging body, two side jagged closure flaps and a transversely extending closure flap”, in a statement released by the court.

They were initially granted by the German Patent and Trade Mark Office, which subsequently rejected two applications to have the marks deleted.

The unnamed party who applied for deletion then appealed to the Patent Court, which upheld the challenges. According to the Marques Class 46 blog, the Patent Court said the packaging could not be protected because it breached section 3(2), No. 1 of the German Trade Mark Act.

That provision applies article 3(1)(e)(i) of the EU trademark directive, which states that signs are liable to be declared invalid if they consist exclusively of the shape which results from the nature of the goods themselves.

The Supreme Court saw no reason to answer the question of whether section 3(2), No. 1 of the German Trade Mark Act was applicable to trademarks consisting of the shape of a product’s packaging, the blog said. “This question could remain unanswered, in the opinion of the Bundesgerichtshof, because the squared shape of the chocolate did not constitute an essential functional characteristic of chocolate.”

“Consequently, the Bundesgerichtshof referred the cases back to the BPatG [Patent Court], which will now have to decide on the remaining issues.”

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