EU trade mark dispute: cleaning capsule

On 13 February, the General Court of the European Union ruled in case T-361/24 on the distinctiveness of a trade mark consisting of a cleaning capsule.

In 2022, the Dutch company Reckitt Benckiser Finish BV applied to the European Union Intellectual Property Office (EUIPO) for registration of the EU figurative mark no. 018805771, representing a cleaning capsule composed of segments in different colours, in particular white, blue and red. The mark applied for covered several goods in Class 3 of the Nice Classification, including dishwashing preparations, detergents, bleaching preparations and other related goods.

At first instance, the examiner refused the trade mark application for all the products on the ground that it lacked distinctive character under Article 7(1)(b) EUTMR. The Board of Appeal later upheld this decision, but remitted the case to the examiner after the applicant claimed that the mark had become distinctive through use. The Dutch company appealed the decision to the General Court of the European Union, which had to determine whether the mark had sufficient distinctive character to be registered.

First, the Court noted that distinctiveness refers to a mark's ability to identify a specific product and to distinguish it from others on the market. That assessment is based on the average consumer's perception of the goods in question. In that regard, the Board of Appeal stated that the mark applied for was merely a graphic representation of a cleaning capsule. Its shape was not significantly different from other capsules on the market, so that it could easily be associated with similar products, rather than uniquely identifying the applicant's goods.

Although the applicant argued that the red element in the mark could confer distinctiveness, the Court considered that the shape and colour used were common in the sector and could not be considered unique or distinctive. The applicant also referred to examples of other registered marks, but the Court pointed out that previous decisions of the EUIPO were not binding on the Boards of Appeal, meaning that each case had to be assessed independently. As a result, the Court dismissed the appeal.