Benetton case spurs ECJ clothes shape trademark precedent.
CLOTHING companies cannot trademark design shapes after advertising
campaigns highlighted particular products, the European Court of Justice
(ECJ) has ruled. In a case between Benetton and Dutch clothing company
G-Star International BV, judges ruled such protection is excluded under
European Union (EU) directive 89/104/EEC on trademarks. G-Star had tried
to prevent Benetton making or distributing trousers in the Netherlands,
which it said broke trademark rights claimed under Benelux law for the
design of its Elwood trousers. The Dutch firm claimed its Italian rival
had broken those rights by incorporating an oval kneepad and two lines
of sloping stitching from hip height to crotch height into its designs.
Benetton demurred and the case was ultimately referred to the
Netherlands' supreme court, which referred proceedings to the ECJ.
It has ruled: "... the shape of a product which gives substantial
value to that product cannot constitute a trade mark ... where ... it
acquired ... recognition as a distinctive sign following advertising