‘Button in the ear’: positional marks not distinctive enough for trademark

The German soft-toy manufacturer Margarete Steiff’s Community trademark applications for its ‘button in the ear’ (and its label attached to the ear by means of a button) have been found by the General Court to be devoid of distinctive character and not registrable.

Steiff had requested protection as ‘positional’ marks for the attachment of a metal button, shiny or matt, fixed to the middle of the ear of any soft toys with ears, and for the attachment of a fabric label with such a button. The size or shape of the ear was not part of the protection sought, but only the position of the button with or without the label in the middle of the ear. The Office for Harmonization in the Internal Market (OHIM) had held that the positional marks were not distinctive and therefore rejected Steiff’s applications…

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