General Court rules that Guerlain’s shape of Rouge G lipstick enjoys trade mark protection

Abstract

Abstract Guerlain v European Union Intellectual Property Office (EUIPO), T-488/20, EU:T:2021:443 The General Court (‘GC’) has overturned the EUIPO and Board of Appeal decisions, ruling that the shape of a lipstick may be registered as a 3D trade mark insofar as it represents a memorable shape that will be perceived by the relevant public as one that departs significantly from the norms and customs of the cosmetics sector. In its analysis of the distinctive character of the sign, the GC did not take into account the originality of the shape nor the high-quality design or its successful aesthetic appeal. It instead considered the range of different shapes of lipsticks available on the market and focused on the objective and uncommon visual effect of the Guerlain’s shape on the relevant public.