The European Court of Justice (ECJ) announced this morning that it has dismissed the appeal of the Community trade mark applicant in Case C-286/04 P Eurocermex SA v OHIM. The application was for registration of a three-dimensional trade mark constituted by the shape of a long-neck bottle into the neck of which a slice of lemon with a green skin was plugged, in respect of beers and various services. The application was roundly rejected by the examiner, the Board of Appeal and the Court of First Instance (CFI) for the reasons that the alleged sign was devoid of distinctive character and that it had not acquired distinctiveness through use.
Today it was the turn of the ECJ to reject it. That court quite correctly confined its comments to a review of the rectitude of the CFI's analysis and did not do what the IPKat hoped it might. It could have said
"how on earth can this so-called trade mark ever function as a trade mark, distinguishing those goods from those of other manufacturers, when it is applied to the goods in question AFTER those goods have been disposed of by the trade mark owner and may or may not be applied to those goods once they are in the hands of bar employees or ultimate consumers?"