TRADEMARK | The EU General Court on the distinctiveness of position trademarks

On 29 January 2025 and on 5 February 2025, the EU General Court issued its decisions in cases T-147/24 and T-195/24. The first decision concerned a trademark application for a position EU trademark featuring a “red flag which is attached to the bottom of the mattress on one of the vertical edges in the lower third”, for goods in class 20 (i.e. mattresses), which was rejected by the European Union Intellectual Property Office (EUIPO) and the EUIPO’s Board of Appeal (the “BoA”) for lack of distinctiveness. The second case dealt with a position mark consisting of a horizontal red stripe running from the nose to the tail of an airplane. As in the previous case, the application had been rejected by the EUIPO and the BoA for lack of distinctivess. In both cases, the Court recalled that trademarks representing the appearance of goods, such as position or colour marks, can only be considered distinctive if they deviate significantly from the norms or customs in the relevant sector. On that basis, the Court dismissed both appeals and refused the registration of the signs in question.

Newsletter n. 105 – March 2025