Position marks are trade marks in which the indication of origin lies precisely in the fact that an element is used at a certain point on the goods. In essence, the criteria applicable to shape marks are also likely to apply to position marks.[1] It may therefore also be more difficult to establish the distinctive character of position marks.[2] The GC considers the decisive factor for the assessment to be whether the position element stands out as an indication of origin or merges with the appearance of the labelled goods themselves.[3]
In contrast, decorations of all kinds are common in the clothing sector, so that the orange colouring of the toe area of a sock
is not protectable as a position mark.[4] The same applies to two simple, curved stripes on a tyre[5] or to a bottle cap with thread.[6] Four green squares on the underside of a scale
were also not protectable.[7]
Footnotes
CJEU T-547/08 of 15.6.2010 Orange colouring of the toe area of a sock, ref. 20, confirmed in the result by CJEU C-429/10 P of 16.5.2011 X Technology Swiss; BPatG GRUR 1998, 390 Red stripe in the heel of a shoe.
↩GC T-547/08 of 15.6.2010 Orange colouring of the toe area of a sock, ref. 25, confirmed in the result by CJEU C-429/10 P of 16.5.2011 X Technology Swiss.
↩GC T-547/08 of 15 June 2010 Orange colouring of the toe area of a sock, ref. 26, confirmed by GC C-429/10 P of 16 May 2011 X Technology Swiss, ref. 37 ff.; GC T-208/12 of 11 July 2013 Red shoelace ends, ref. 34, appeal dismissed by GC C-521/13 P of 11 September 2014 Think Schuhwerk; GC T-331/12 of 26 February 2014 Yellow arch of a sock, ref. 26.2.2014 Gelber Bogen am unteren Anzeigeeinheitrand, ref. 21; T-489/17 v. 16.1.2019 Windspiel Manufaktur, ref. 16; also GC T-433/12 v. 16.1.2014 Knopf im Ohr, ref. 25 [not final]; GC T-434/12 v. 16.1.2014 Fähnchen im Knopf im Ohr, ref. 25 [not final].
↩GC T-547/08 of 15.6.2010 Orange colouring of the toe area of a sock, ref. 28, confirmed in conclusion by CJEU C-429/10 P of 16.5.2011 X Technology Swiss.
↩GC T-81/16 v. 4.7.2017 Curved stripes on the sidewall of a tyre.
↩GC T-489/17 of 16 January 2019 Windspiel Manufaktur, ref. 14 ff.
↩GC T-184/17 of 13 September 2018 Leifheit.
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