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In a ruling delivered today, the Court said that the attachment of a button or a label to the ear of a soft toy is not distinctive because it does not allow average consumers in the EU to know that the toy was made by Steiff.
The German company applied to OHIM for a CTM for its positional mark in 2010 to protect the position of the button in the middle of the ears of the toys, rather than a particular type of label or button.
OHIM said that the mark was devoid of distinctive character and that Steiff could not enjoy an exclusive right to produce soft toys that have a rectangular fabric label attached to their ears by way of a metal button fixed to the ear.
Now the General Court of the Court of Justice of the EU has backed OHIM. It said that the “positional” marks cannot be separated from the overall appearance of the toys. It also ruled that consumers would regard the button and label as a decorative element (one of many possible designs of soft toys) rather than as an indication of commercial origin.
The Court added that it was irrelevant whether Steiff was the only manufacturer to attach a shiny or matt round metal button to the ears of soft toys or a rectangular fabric label in the middle of the ear of soft toys.
