ABSTRACT
This article considers the implementation of Article 7(1)(b) EUTMR as it applies to shape marks. The CJEU has stated that for a product shape to be inherently distinctive, it must depart significantly from the norm in the sector concerned. The CJEU has never explained the ‘norms test’ nor how it should be applied in practice. This article critiques the norms test and examines how it is being implemented by the EUIPO – relying upon internet searches to identify the sector ‘norm’ and then comparing this to the mark in question – and suggests how this practice could be improved.
Simon, Ilanah, What is a Significant Departure from the Norm? Assessing the Inherent Distinctiveness of 3D Shape Marks (October 21, 2022). Forthcoming, Journal of Intellectual Property Law and Practice.
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