Not unusual
According to EUIPO, the appearance of these pods are a true-to-life portrayal of capsules in the process of cleaning, rinsing and/or decalcifying. They do not depart significantly from how these are commonly portrayed. I is highly unlikely that the average consumer would perceive the pods as unusual and standing out from the other capsules available on the market. They are not distinctive and can not be registered as trademarks, according to EUIPO.
Cartoonish and red ball
But surely our pods are more of a cartoonish representation of the actual product, Reckitt tried. And what about that striking red ball: surely it differs from what is already on the market? Moreover, you have previously accepted the registration that ball as ‘stand alone’ trademark. How can that be,” Reckitt insisted.
Unrelenting
But EUIPO was not to be swayed. The case law is clear and those pods are not special according to EUIPO. And as for the earlier registration of that ball, that case is not comparable in the first place. That involves a different trademark. And, according to EUIPO, may we further point out that there are currently proceedings underway to overturn the registration of the ball?
Henkel
And indeed, a glance at the register reveals that competitor Henkel has recently launched a cancellation action against Reckitt’s red ball registration, presumably arguing that the registration was wrongly accepted because such a red ball is not distinctive. I think this gives Reckitt more headaches than those rejected pods. After all, that ball itself is a key component in the marketing of Reckitt’s Finish brand: both the pod and the logo contain a red ball. So it probably will remain remain turbulent times in the world of the dishwashing pods.
Bas Kist
