3D Trademarks In Euroland

WO - Boston.   The Court of Justice for the European Communities confirmed in its decision in the matter August Storck KG v. Harmonization Office for the Internal Market (Marks, Patterns and Models), EuG November 10, 2004, docket numbers T396/02, T-402/02, that a Community trademark registration for a three dimensional trademark may be granted. According to the ruling, the applicant for registration of a 3D mark must show that the three dimensional object is distinctive and is, therefore, capable of distinguishing the goods of the user from those of others. This ruling could not help the applicant in Storck. In Storck, the applicant sought to register the shape of its hard candies, claiming that the color and shape of its candy was distinctive and would, therefore, allow consumers to distinguish their candies from those of other manufacturers. The court found that the both the shape and color of applicant's candies were not unusual for candies and, therefore, could not act to distinguish one candy from another. Lastly, the Court noted that the candies are sold individually wrapped, so that the consumer could not view the shape and color of the candy when making a purchase. In that event, the color and shape of the candies could not acquire distinctiveness.