Position mark protects a combination of factors
A position mark protects a combination of two factors: a specific (visual) element (1) applied in a particular position (2) on a product. Protection is granted for that combination. Examples include a distinctive red label in a fixed place on a pair of jeans (Levi’s), or a blue front tire on a bicycle (Swapfiets). Or, as in Philips’ case, a row of blue bristles placed near the tip of a brush.
Not distinctive
To clear the way on Amazon, demirdental asked the Benelux Office for Intellectual Property (BOIP) to declare Philips’ trademark invalid. Their main argument: the mark lacks distinctiveness. A few blue bristles on a brush are not distinctive, they argued. The market is full of brushes with colored bristles, and blue in particular is widely used. So why should Philips get trademark protection for this?
Position mark remains valid
However, on 6 March, BOIP confirmed that Philips’ position mark remains valid. According to BOIP, while the examples provided by the Germans do indeed show brushes with colored bristles, they lack the specific positioning seen in Philips’ mark. It is precisely the combination of the blue bristles in that particular place that is distinctive. The registration therefore stands—and the Germans’ problems on Amazon continue.
Position marks face an uphill battle
I have to admit, I wouldn’t have confidently predicted this outcome. In my opinion it could just as easily have gone the other way, with Philips’ mark being invalidated. In general, position marks have a hard time: many are refused for lack of distinctiveness. For example, red fingertips on gloves, a blue accent on a screw, and red elements on trousers have all been refused registration. But apparently, BOIP found Philips’ arguments convincing.
More lenient in the Benelux?
What may also play a role is that this is a Benelux registration. My impression is that BOIP is more lenient with position marks than the European Union Intellectual Property Office (EUIPO). Philips recently experienced this difference firsthand.
In 2024, BOIP accepted a position mark by Philips consisting of a visual element placed in the middle of a shaver’s casing, considering it distinctive. However, on 25 February 2026, EUIPO refused registration of that exact same position mark, finding it non-distinctive. Quite remarkable.
Bas Kist
Photo by Cosmin Ursea on Unsplash
