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Tuesday, July 20, 2021Jurisprudence

The shape of a lipstick can be a mark

La forme d'un rouge à lèvres peut être une marque

The General Court of the European Union ruled in favor of Guerlain against the EUIPO (European Union Intellectual Property Office) and held that a three-dimensional sign consisting of the shape of a lipstick can be sufficiently distinctive to be registered as a trademark.

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Guerlain applied to the European Union Intellectual Property Office (EUIPO) for registration of a three-dimensional EU trade mark in respect of its customizable lipsticks “Rouge G”. It is a three-dimensional sign consisting in the oblong, tapered and cylindrical shape of a lipstick.
The EUIPO Examiner found that the mark applied for lacked distinctive character and dismissed the application. The Board of Appeal upheld that decision, finding that the mark did not depart sufficiently from the norms and customs of the sector. The General Court of the European Union annuls the decision of the Board of Appeal. It finds that the mark applied for has distinctive character because it departs significantly from the norm and customs of the lipstick sector.

Assessment of the General Court

First, the General Court recalls that the assessment of whether it has distinctive character is not based on the originality or the lack of use of the mark applied for in the field to which the goods and services concerned belong. Indeed, a three-dimensional mark consisting in the shape of the product must necessarily depart significantly from the norm or customs of the sector concerned. Accordingly, the mere novelty of that shape is …

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