A trademark can also be registered for a shape mark. Here in particular, distinctiveness is often a hurdle that is difficult to overcome. The EuGH has recognized that shape marks or 3D marks can only be registered if the relevant public perceives the shape of the mark as deviating from a shape that is customary in the industry to such an extent that they recognize an indication of a company in the shape. In this context, the EuGH also stated that the public does not normally infer the origin of a product from its shape or the shape of its packaging if graphic or word elements are missing. Even a simple deviation from the norm or customary practice in the industry is not sufficient; this deviation must be significant.
These principles now also led to the cancellation of the represented EU trademark no. 010168441 registered at the EUIPO. Thus, the EuGH ruled that the shape of the contested trademark corresponds to the usual shape of ski boots, which generally consist of a high upper, often made of lightweight synthetic material, with soles and laces. In particular, it upheld the Boards of Appeal's view that the position of the laces and the parallel stripes on the upper of the boot, as well as the height of the upper of the boot, are not unusual and are merely a variant of the shapes commonly used in the field of after-ski boots.
