EUIPO on the distinctiveness of Absolut Company Aktiebolag's vodka bottles

A recent decision by the EUIPO Fifth Board of Appeal, dated June 3, 2022, granted Absolut Company Aktiebolag the right to register the trademark shown below, having established distinctiveness pursuant to Article 4 of the EU Trademark Regulation No. 1001/2017.

As the image shows, the mark applied for consists of a three-dimensional reproduction of a bottle for alcoholic beverages, more specifically vodka, rectangular in shape, distinguished by certain copper-coloured elements, including the bottle closure, the neck, the back of the bottle as well as the front label frame.

The trademark application initially failed due to a lack of distinctiveness. The EUIPO examiner, in particular, found that the sign was not capable of attracting the attention of consumers, as it was already commonly used in the field of alcoholic beverage packaging, and therefore incapable of providing the relevant public with indications of the origin of the goods and services protected by the registration.

Absolut Company Aktiebolag appealed against this decision, claiming that the sign sought to be registered had a sufficient degree of distinctiveness to be registered, given the combination of the various elements that formed the bottle in question. According to the Swedish company, moreover, in the vodka bottle trade, unlike gin bottles, the packaging has repetitive characteristics, including its cylindrical shape, narrow neck, and the use of a narrow range of colours (white, blue, and silver). Indeed, the very design of the bottle allowed consumers to identify its origin by distinguishing it based on its specific characteristics.

In the decision commented on here, the Board of Appeal disagreed with the examiner’s objections and confirmed the distinctive character of the mark, thus granting the application for registration. Indeed, the EUIPO recalled that among the criteria for determining the distinctiveness of a mark, and thus assessing whether it has high distinctiveness, such a sign must depart significantly from the norm or customs of the sector concerned, in order to allow the consumer to perceive this particular combination as an indication of commercial origin, and not simply as decorative packaging. According to the Commission, although the mark in question is made up of various elements that can be traced back to other vodka bottles on the market that do not allow it to be distinguished by originality and novelty, there are just as many elements that have a strong impact on consumers' perception of the entire bottle, including the shades of copper that cover much of the bottle.

Finally, the Commission clarified that through a combination of colours, a consumer's attention can be captured, thus preventing that combination from being perceived in the eyes of the buyer as merely decorative. Indeed, in the present case, the very presence of the shades of copper to gold, covering a significant part of the bottle, precluded a finding of non-distinctiveness.