The Judgment of the General Court of 14 June 2016, in the case Loops, LLC versus EUIPO, discusses the distinctive character of the following three-dimensional mark:

for class 21, designating ‘toothbrushes’.

The examiner and the Second Board of Appeal of EUIPO refused protection of the mark applied for as it was immediately recognized as a toothbrush, without any further research or prolonged reflection, which suggested at the very least that it did not depart significantly from the shape which consumers expect a toothbrush to possess.

The applicant only disputes that even if the mark can be recognised as a toothbrush per se by the trade circles concerned, that is not a reason to refuse to recognise its distinctive character.

The General Court establishes that, as was rightly stated the Board of Appeal, toothbrushes are generally in the form of a handle, at the end of which is a head in which bristles are fixed for cleaning teeth.  The thickness of the head as well as part of the handle is also dependent on the characteristics inherent in the function of that toothbrush, which must be put into the mouth. It found that, overall, the mark for which registration is sought is in the form of a toothbrush, the above-mentioned characteristics of which are similar to variations of toothbrushes usually available on the market, which do not permit the finding that that mark, as a whole, diverges significantly from the usual forms of those goods. Consequently, the General Court rejected the action.