For a long time, the BGH has not yet fully followed the strict case law of the CJEU - even though more recent decisions correctly state that trade marks consisting of the shape of the goods generally lack distinctive character.^[1] Arguably, the BGH still proposes a differentiation according to the nature of the goods. A different perception of the public is therefore also taken into account here: For many goods, the public often has no reason to see anything other than a purely functional or aesthetic design in a particular shape. In the case of technical devices, for example, the public is more likely to consider a specific design feature - even if it is not in fact technically conditioned - to be functionally conditioned and not to infer an indication of origin from it, because it initially assumes that the shape of such goods is primarily orientated towards the technical function. Although the BGH ultimately follows the strict criteria of the CJEU for these goods, distinctiveness has often been incorrectly affirmed in the recent past.
For example, the BGH correctly ruled that the shapes of goods applied for filling bodies,^[2] light metal rims,^[3] the case carrier of a watch,^[4] for various electrical appliances^[5] or for pharmaceuticals^[6] were not distinctive.

are not distinctive. In contrast, the trade marks applied for forklift trucks,^[7] watch cases^[8] and motor vehicles^[9] were found to be devoid of distinctive character due to allegedly unusual design elements.

and for torches, which were similar to those shown^[10] above.^[11] Although the public is not likely to pay attention to design details in the area of aesthetic design, the BGH ultimately incorrectly affirmed the distinctiveness of the trade mark

for clothing, footwear and headgear.^[12] On the other hand, distinctiveness was correctly denied for the following two motor vehicle parts

bonnet on the left and front panelling on the right.^[13]
The BGH distinguishes certain other goods, such as food,^[14] from these more technically or aesthetically orientated shapes of goods. Here, an indication of origin is rather obvious to the public who encounters the goods in a certain shape, according to life experience, even if no habituation can be established respectively.
For example, in the case of cheese, the consumer is - to a large extent^[15] - more likely to associate the respective shape with a specific commercial origin if it is recognisably an arbitrary shape that differs from other shapes by recurring characteristic features, i.e. features that create identity. The flower shape

therefore has sufficient distinctive character for cheese.^[16] The toothpaste

also has sufficient distinctive character for toothpaste, at least in its very specific, rather non-lifelike design.^[17] In contrast, the praline shape

was inherently devoid of any distinctive character because comparable surface shapes from neighbouring product areas were generally known.^[18]
Finally, special rules apply to product shape marks if the product itself cannot be identified by ordinary trade marks, in particular word marks, because the public expects the blank product. In this case, the public will be more inclined to pay attention to special features of the shape and to attribute a distinguishing function to them.
For example, the BGH confirmed in the case of the sign applied for, inter alia, for labels

for labels, the BGH did not confirm the lack of distinctive character. The decisive factor here was also that there was a certain lack of distinctive character in the field of goods, as the market only demanded unprinted labels.^[19]
In particular, the BGH raised the evidence requirements for the DPMA and BPatG disproportionately and contrary to European law.^[20] The question of whether the distribution of a product has an impact on whether and in what way the public considers a product form to be customary in the industry must be answered according to the overall circumstances of the market segment concerned - such as the market shares existing there, the turnover achieved, the territorial and temporal extent of distribution and other distribution circumstances.^[21] Market shares, turnover and distribution modalities would have to be determined - circumstances that are usually not generally known or accessible and whose determination is time-consuming. This has nothing to do with the practice of the EUIPO and the CJEU, where customary practice is usually simply asserted and the trade mark rejected.
The BPatG, for example, had the shape of the chocolate bar

because both the stick shape and the corkscrew shape were demonstrable on the market. The BGH overturned this decision and effectively made a further rejection impossible with its evidence requirements.^[22]