The General Court of the European Union has ruled in case T‑ 187/19, Glaxo Group Ltd v EUIPO.
It concerns an attempt by Glaxo to register the following European color trademark for inhalers and pharmaceutical preparations for the treatment of asthma and/or chronic obstructive pulmonary disease in Classes 5 and 10:
The EUIPO refused the application based on absolute grounds – lack of a distinctive character. In the appeal the Board of Appeal upheld this decision.
The BoA found that, in view of the goods, the choice of colours referred to the main active ingredients, the use for which the medicinal product is intended and its characteristics. It also found that the relevant public had a specific interest in having colours kept available for competitors in the market of pharmaceuticals, since patients are inclined to take a generic pharmaceutical product more regularly, and even more so if the presentation of the medicinal product is similar to that of the original product. The Boarded concluded that the sign was not distinctive at all.
The General Court of the EU dismissed the followed new appeal. According to the Court registration of single color is possible in very limited cases and under specific circumstances., otherwise such a color cannot be perceived as a source of trade origin.
The evidence submitted by Glaxo for an acquired secondary distinctiveness was not enough to overcome this conclusion.
For example, it wasn’t clear whether the provided opinion surveys in only 10 Member States were representative or not. The Court considers small samples (100-200 people) as not reliable.
Apart from this, the interviewees, whether healthcare professionals or patients, were shown only one image representing a shade of the colour purple. They were therefore not asked to choose from several images or even shades which one could spontaneously be associated with a particular undertaking.
The originals of the colour samples annexed to the surveys carried out in certain Member States include a shade of purple different
to that of the other samples, or even represent a certain type of inhaler and not a colour.
The Court regarded the sales data and advertisement materials only as secondary evidence which may support, where relevant, direct evidence of distinctive character acquired through use, such as that provided by the surveys.
Source: Alicante News.