Rotter v OHIM - Pretzel-shaped sausages are unregistrable

In T-449/07, the CFI had to consider an appeal from OHIM concerning the registrability of an arrangement of sausages set in a pretzel shape. The issue was whether the mark was devoid of any distinctive character. The CFI held, dismissing various arguments, that the applicant had not shown how the shape differed significantly from the usual shape in which sausages are presented in trade. The CFI held that it was not a valid argument to compare the mark to a single sausage and commented that the gathering together of sausages by their ends is a common practice in trade. The CFI also dismissed the argument that it was a novel form of presentation because it said, the use of a novel form of presenting charcuterie was in itself a new commercial phenomenon.

Ultimately, one is left guessing whether, if the evidence had been better and Rotter had shown that it was very unusual for sausages to be presented in a pretzel-like shape, whether the CFI would have allowed the mark. Again, this raises the important issue whether the fact that a shape mark does indeed differ significantly from the normal customs is sufficient or merely necessary for a finding that the mark is not devoid of distinctive character. The mere fact that one has a strikingly novel design for a shape does not, in the author's opinion, mean that the shape will be perceived as a trade mark. This issue is discussed in IPE at 3-075 where, in contrast to the author's opinion, in T-393/02, the CFI appeared to endorse the stance that it is sufficient for the purpose of overcoming an objection based on lack of distinctive character, that the shape mark is made up of elements which distinguish it from other shapes and has a characteristic presentation.