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If a sign consists entirely in the illustration of the goods covered or their packaging, or in a good that directly embodies the performance of the service covered by the mark, without any distinguishing individualisation by means of an unusual perspective, stylised depiction or other special representation, it is subject to the same requirements as those three-dimensional trade marks that consist in the shape of the proffered good or packaging itself (so-called “shape marks”).
An indication of commercial origin is only recognised in the good’s figurative mark when the latter goes beyond functional or aesthetic aspects of the shape of goods as shown.
To assess the question of distinctiveness it is irrelevant which category of trade mark a sign falls under.
The assessment of the variety of shapes must be carried out pursuant to case law and in consideration of all shapes that can be found in the claimed segment of goods or services at the time of the decision on registration. Furthermore, it must be considered that a large variety of shapes makes it more difficult to create a non-banal shape that is understood by the consumers to be an indication of commercial origin and not a decorative element or technical accessory.
Goods of class 30 (chocolates, sweets and ice cream) – when individually packaged – are often offered for sale in foil packaging, in different shapes, and, if the package is sealed, the ends are often serrated. Furthermore, the graphic design of these packages incorporates colour, graphic elements and lettering. The here portrayed rectangular shape and multicoloured design of the packaging foil with its (asymmetrically) serrated lateral closures do not diverge greatly from this basic arrangement and cannot, thus, be perceived as an indication of commercial origin.