When lipstick packaging can be a trademark in the EU?

The General Court of the European Union has ruled in case T‑488/20 Guerlain срещу EUIPO.

This case concerns the following applied for EU three-dimensional trademark for “lipsticks”:

The EUIPO refused to register this sign based on absolute grounds – the mark did not depart sufficiently from the norms and customs of the sector.

The Board of Appeal confirmed this decision.

In the appeal, however, the General Court disagreed with the EUIPO and annulled the decision entirely. According to the Court, the 3D trademark is distinctive enough in order to be a sign of trade origin.

The General Court finds that the shape in question is uncommon for a lipstick and differs from any other shape existing on the market. It observes, first of all, that that that shape is reminiscent of that of a boat hull or a baby carriage. Such a shape differs significantly from the images taken into consideration by the Board of Appeal, most of which represented cylindrical and parallelepiped lipsticks.

Next, the presence of the small oval embossed shape is unusual and contributes to the uncommon appearance of the mark applied for. Lastly, the fact that the lipstick represented by that mark cannot be placed upright reinforces the uncommon visual aspect of its shape.

Consequently, the General Court finds that the relevant public will be surprised by this easily memorable shape and will perceive it as departing significantly from the norm and customs of the lipstick sector and capable of indicating the origin of the goods concerned. Accordingly, the mark applied for has a distinctive character, which permits it to be registered.