On 4 September 2024, Parfums Christian Dior filed a three-dimensional trademark application, with the EUIPO, to designate cosmetic, perfumery and make-up products in Class 3. However, the examiner refused the application on the grounds that the sign lacked distinctive character for the intended goods, as it did not significantly depart from the norms and customs of the sector, and consisted merely  of a combination of common presentation elements (a black rectangular bottle with a rounded metal cap).

The applicant lodged an appeal, arguing that the contested decision revealed a clear lack of knowledge of the sector and the role packaging can play in consumer perception when making a purchase. The applicant defends the distinctiveness of the sign, on the basis that cosmetic products come in a wide variety of forms. It also argues that consumers will pay particular attention to their choice of these products, as they are meant to be applied on their skin or hair. Moreover, the applicant also points out that the public is particularly sensitive to the form of products in the cosmetics sector.

The Board of Appeal considers that the higher level of attention that the relevant public may pay is irrelevant, for the purposes of assessing the distinctive character of a sign, as it does not affect the trademark’s distinctive character. The Board of Appeal also reiterates that distinctiveness does not depend on a certain level of creativity; it is sufficient for the public to be able to identify the origin of the  designated goods and distinguish them from those of other companies.

The Board of Appeal agrees with the examiner’s decision, since the rectangular shape of the depicted bottle is classic and will merely be perceived as a common and traditional container for the designated products. Similarly, the colour, the “mirror” effect and the translucent appearance of the case are all commonly used in the sector.

Given the banal and commonplace nature of each element and their simple combination, the sign does not have distinctive character for the designated goods. The applied-for mark, considered as a whole, does not differ significantly from the sector’s norm and customs for these goods. For all these reasons, the appeal is dismissed and the case is referred back to the examiner to examine the subsidiary claim regarding the sign’s acquired distinctive character of the sign acquired through use.

Decision of the Fourth Board of Appeal of the EUIPO of 30 October 2025 in case R853/2025-4