How Much Attention Does the Average Consumer of Ice Cream pay to Packaging?

Ruling of the European Union General Court

On 25 September 2014, the European Union General Court (EU General Court) handed down a ruling (case ref. T-474/12) in the case of an invalidation of the right to a three-dimensional Community trademark created by the form of two packaged ice cream cups.

The above mark, registered in 2009 for the benefit of Giorgio Giogis for products such as ice cream, sorbets, and frozen yoghurts, was invalidated as a result of a motion by an intervening party – the French company Comigel SAS. The Cancellation Division of the Office for Harmonization in the Internal Market (OHIM) took the view that the mark is devoid of distinctiveness and has not acquired distinctiveness as a result of use. That argumentation was shared by the OHIM Board of Appeal.

Giogio Giogis filed a complaint with the EU General Court. Giogis argued that the mark has distinctiveness and that the average consumer of ice cream shows a high level of attention because the purchase is based on various factors such as flavour, manner of consumption, type and possibly ingredients. The OHIM held a contrary view finding the goods for which the mark is registered are grocery items, which normally reach stores in packaged form and, therefore, the amount of attention consumers pay to their appearance is not particularly high.

The EU General Court agreed with the OHIM, referring in its justification to the particular category of trademarks comprised of three-dimensional marks formed by the packaging of a product. The EU General Court held that it can be more difficult to establish the existence of distinctiveness for such marks than for others. The average consumer is not accustomed to drawing conclusions concerning the origin of a product on the basis of its form or the form of its packaging. Only a mark which diverges significantly from industry standards or custom can be said to be distinctive, since only then can it act as a designation of origin.

In the food industry, when selling ice cream, desserts, sorbets, and yoghurts, packaging of similar form is widely used. Since the contested trademark consists only of two transparent glass containers in the form of ice cream cups, it cannot be held that it is distinctive. For these reasons, the complaint was dismissed.