January 2019. Bacardi has been told it can register the image of a bottle without any text after having previously been refused it. The decision was announced by the Board of Appeal BOA of the European Trademark Office EUIPO in December.
Left: Bacardi’s new trademark registration, which it hopes will further safeguard the design of its bottle
By registering the appearance of the bottle with no text, Bacardi hopes to extend the scope of protection to the design of its packaging. EUIPO had initially refused the registration because it felt the design wasn’t distinctive enough, and that the red seal and coat of arms printed on the label were mainly decorative.
However, Bacardi won on appeal when in December the BOA ruled that not all visual elements could simply be dismissed as merely decorative (and hence not subject to protection). Despite the fact that red seals and badges from ancient noble families are quite often used on bottles containing alcoholic beverages, the BOA concluded that the combination of the different visual elements and colours used on the Bacardi bottle were sufficiently distinctive. So Bacardi gets its registration after all.
Examples of EU-trademark registrations without text. From left to right: Lipton, Maltesers, Red Bull, Uncle Bens, M&M’s
Scope of protection of packaging
Registering the basic design of the packaging without the customary text is a tried and tested strategy for giving wider protection to packaging. Fortunately, in the Bacardi-case the Board of Appeal adopted a flexible stance which allows for a broad protection of packaging design in general.