Abstract

In this gloss to the judgement of the Appellate Court of 14 March 2012 (VI ACa 800/11), the authoress discusses the issue of secondary distinctiveness of a three-dimensional trademark displayed together with other marks.

The authoress argues that the Appellate Court rightly decided that for distinctiveness of a trademark it is not necessary for the consumer to isolate it at all times, but to recognize it as one of the elements marking a product or as a dominating element. This type of recognition may take place both as a result of using it as a component of a registered trademark or its element, and also as a result of using a different trademark in combination with a registered trademark.

As regards the functional nature of a three-dimensional trademark (packaging), in the said case the Appellate Court found that the protected shape of the disputable mark (yoghurt container) does not relate exclusively to its function. The Court compared it to the registration of the shape of Coca-Cola bottles, where the mark in the form distinguishable and established in the minds of the consumers due to its characteristic shape constitutes the main element absorbing consumer’s attention during purchasing.