Storck lose community trademark appeal

August Storck KG, Berlin, have been unsuccessful in their attempt to obtain a community trademark for the shape and packaging of their caramel sweets “Werthers Original”, sold worldwide. In 1998 Storck filed an application for the mark at the OHIM in Alicante which was dismissed. The company then lodged appeal. The court in Luxembourg has found that the oval shaped sweets with the depression in the middle were not markedly different in shape from other sweets on the market and thus insufficiently distinctive in character to merit the mark ( see EU documents 396/02 and T-402/02). As regards the packaging, the court ruled that this was likewise devoid of distinctive character and therefore nonprotectable. According to court,advertising costs for Werthers Original totalling € 14.2 m in 1998 were in the opinion of the court not probative,since itwas impossible to discern what expenses had been used for. Results of a consumer survey to support Storck’s case were submitted too late and not considered.The company is free to appeal within two months.