Judgment of the General Court Fifth Chamber of 26 October 2022, The Bazooka Companies v EUIPO – Bilkiewicz Shape of a baby’s bottle, T-273/21

• Date: 26 October 2022
• Year: 2022

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2. APPROXIMATION OF LAWS: EUROPEAN UNION TRADEMARK

Judgment of the General Court (Fifth Chamber) of 26 October 2022, The Bazooka

Companies v EUIPO – Bilkiewicz (Shape of a baby’s bottle), T-273/21

Link to the judgment as published in extract form

EU trade mark – Revocation proceedings – Three-dimensional EU trade mark – Shape of a baby’s bottle –

Genuine use of the mark – Point (a) of the second subparagraph of Article 18(1) and Article 58(1)(a) of

Regulation (EU) 2017/1001 – Nature of use of the mark – Form differing in elements which do not alter the

distinctive character – Obligation to state reasons

In 1999, The Topps Company, Inc., obtained from the European Union Intellectual Property Office

(EUIPO) registration of a three-dimensional trade mark consisting of the shape of a baby’s bottle in

respect of goods in the candy sector.

In 2018, an application for revocation alleging a lack of genuine use

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of that mark was filed with

EUIPO; that application was granted by the Cancellation Division and confirmed by the Board of

Appeal of EUIPO. In 2022, the contested mark was transferred to The Bazooka Companies, Inc., which

thus became the applicant before the General Court.

By the present judgment, the Court annuls the decision of the Board of Appeal and clarifies the

differences between the terms ‘shape’ and ‘form’ used in the English-language version of Regulation

2017/1001. In addition, it summarises its case-law regarding alteration of the distinctive character of a

three-dimensional mark and its joint use with another mark.

Findings of the Court

As a preliminary point, the Court notes that the English-language version of Regulation 2017/1001

uses, on the one hand, the word ‘shape’ to state that an EU trade mark may consist, inter alia, of the

shape of goods or of the packaging of goods,

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and, on the other hand, the word ‘form’ to designate

use of the mark in a form differing in elements which do not alter the distinctive character of that

mark.

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In the first place, the Court considers that no variation between the form of which the contested mark

as registered consists, that is to say, the three-dimensional ‘shape’, and the form of which the

contested mark as used consists can be regarded as significant. Both marks have the shape of a

baby’s bottle, including a teat, a serrated surface and a lid, and will be perceived by the relevant public

as identical.

In the second place, the Court holds that the word and figurative elements that cover the contested

mark as used have not led to use in a ‘form’ differing from that mark as registered, since they do not

alter the distinctive character of the mark. Those elements do not call into question the fact that their

addition may be regarded as having given rise to use of that mark in an acceptable variant.

To reach that conclusion, the Court relies on the fact that, in order for the use of a mark that is used

only as part of a composite mark or in conjunction with another mark to be covered by the term

‘genuine use’, that mark must continue to be perceived as indicative of the origin of the goods at

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For the purposes of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the

European Union trade mark (OJ 2017 L 154, p. 1).

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First paragraph of Article 4 of Regulation 2017/1001.

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Point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001.