The EU General Court ("GC") has overturned EUIPO and Board of Appeal decisions, ruling that the shape of a lipstick may be registered as a 3D trade mark insofar as it represents a memorable shape that will be perceived by the relevant public as one that departs significantly from the norms and customs of the cosmetics sector.
In its analysis of the distinctive character of the sign, the GC did not take into account the originality of the shape nor the high-quality design or its successful aesthetic appeal. It instead considered the range of different shapes of lipsticks available on the market and focused on the objective and uncommon visual effect of the Guerlain's shape on the relevant public.
In a Current Intelligence Note recently published in the Oxford Journal of Intellectual Property Law and Practice, Giulia Maienza analyses the GC's ruling and the practical significance of this decision for the luxury and cosmetic sectors. You can find the full article here.
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