In January 2019, Logitech applied to register the three-dimensional mark shown below, which shows the external appearance of the relevant goods, namely microphones in class 9.

In September 2019, the examiner refused Logitech’s application in its entirety on the basis that the mark consisted of a combination of presentational features typical of the shape or appearance of a spherical microphone head with visible parts for the light which signals the on/off status, grids (the elliptical shapes depicted in the first and second images shown above), connector socket and the part for attaching or fastening it to the holder. The sign was not considered to be markedly different from the basic shapes commonly used for the goods at issue but a mere variation. As such, the relevant public would not perceive the sign as a trade mark because it did not constitute a significant departure from the norms and customs of the sector.

Logitech filed an appeal against the decision, arguing that the ball shape of the microphone and grid are not common or typical, and that the examiner had erroneously assessed the evidence presented.

The EUIPO disagreed and did not overturn examiner’s decision.

It was noted that, in the absence of any graphic or word elements, consumers are not used to making assumptions about the origin of products based on their shape or the shape of their packaging. As such, it can be more difficult to establish distinctive character in relation to 3D marks as opposed to word and figurative marks.

The Board of Appeal pointed out that the essential function of a trade mark is to designate commercial origin, whereas the main features of Logitech’s mark were dictated by function.

With regard to the goods in question, the EUIPO observed that microphones target both general customers as well as professionals displaying a high level of attention.

Reviewing the ball shape of the microphone, the Board of Appeal pointed out that rounded microphone heads are a classic shape within the sector and that a trend for rounded microphone heads was repeated throughout the appellant’s evidence. The rounded shape was also primarily considered a functional rather than aesthetic necessity, serving as a receptacle for mechanical and electrical components.

The grid shape and the mesh grille also lacked distinctive character. The Board of Appeal disagreed with Logitech’s argument that the four connected elliptical shapes of the sign constitute a figurative element with additional distinctive character. The Board of Appeal noted that these merely represent the borders surrounding the mesh grille (a general characteristic of all microphones) and that the elliptical aspect of the mark represented a particular grid type, not a label, name or figurative element. The grid shape was also considered to be dictated by function – it is influenced by the spherical shape of the microphone head and the configuration of protective casing relative to the mesh or membrane, which permits the entry of sound for amplification purposes.

Logitech’s further argument that the examiner did not give due consideration to a previously accepted registration, namely European Union Trade Mark no. 004348348 owned by Shure Acquisition Holdings, Inc (shown below) also failed.

The prior registration relied on features a visible logo and as such was not genuinely comparable to Logitech’s application.

With the appeal dismissed in its entirety, an examination of Logitech’s subsidiary claim that the mark has acquired distinctiveness through use has now been remitted for further prosecution.

In short

This decision serves as a reminder that shape marks can be problematic to obtain before the EUIPO, particularly where the shape in question is functional. As such, in certain circumstances, applicants may be better placed to include non-functional decorative features to a product and educate the public via strategic advertising campaigns to associate those features of the product with the brand as part of its trade mark strategy.