Consumers are used to recognize trademarks on the basis of logo’s or words. This does not exclude that a packaging can be distinctive (and can be registered as a trademark), however, this packaging should differ significantly from the standard. In practice, distinctive packages are the exceptions. Nevertheless, companies (especially the leading brands) still try to obtain these kind of trademarks as they do form a mighty weapon against copycats.
In the present case, the mark was filed by Storck, known from Merci and Wether’s Original. The European application was initially refused, also in appeal. Also, the Court of First Instance found the mark not distinctive (the colors are customary and the wave is commonly used).
Storck appealed again. However, the Court of Justice does not see a reason why the decision should be overruled whereas it states that it must be recalled that the appraisal of those facts and the assessment of that evidence does not, save where the facts or evidence are distorted, constitute a point of law which, as such, is open to review by the Court of Justice on appeal. The appeal is dismissed.
At the end, it remains difficult to protect packaging as a trademark. Fortunately, a design registration will give some relief.