‘A bottle with a diagonal line on it’ or ‘a bottle with a blade of grass inside it’? GC rules on the subject matter of a trade mark and its permissible alteration for genuine use purposes

The Procrustean fitting of trade marks under the requirements of clear and precise subject‐matter in the EU trade mark law—A case of position marks

“…33 and published on23 June 2003 (hereinafter the Underberg mark). Initially, the sign carried the indication 'three-dimensional', but during separate proceedings-concerning inter alia its lack of distinctive character-the applicant changed the categorisation to 'position' and the description was adjusted to include the place of the blade (T-796/16,[38][39][40][41][42][43][44][45][46]41).If readers of both descriptions were to decide by themselves what kind of trade marks these two signs actually were, the analysis of both graphical representations and descriptions would point towards two position signs of identical substance. The descriptions mirrored one another, that is, a bottle with a blade of grass (earlier mark) versus a blade of grass in a bottle (later mark).…”