In March 2021, CHRISTIAN DIOR COUTURE filed as a three-dimensional trademark the following design representing the shape of its “Saddle” bag, a model on sale for many years. They claimed classes 9 and 18, for glasses, glasses cases, bags, etc.
A first refusal decision was issued on November 11, 2021 for some of the goods covered, refusing sufficient distinctiveness to this shape, which according to the examiner “does not significantly diverge from the standards and habits of the sector”.
DIOR filed an appeal against this decision arguing in particular that the sign is clearly distinguishable from existing shapes on the market and providing numerous elements as to the acquisition of the distinctive character of the mark through its widespread use.
The Board of Appeal confirmed the decision of rejection with regard to the insufficiently distinct nature of the market habits of the sign applied for. However, it leaves open the question of distinctiveness acquired through use, which will have to be examined separately.
The solution might have been different if DIOR had filed at the time the bag was created, the distinctiveness having to be assessed at the time of filing, and its shape which has become emblematic having undoubtedly inspired many current creations between its design and the year of filing. Moreover, one can wonder about the relevance of filing without the shoulder strap, which contributes to the originality of the bag.
Let’s hope that the examination of the distinctiveness acquired by use finally allows a registration, because for any self-respecting shopping-addict, the shape of the Saddle is indeed characteristic and distinctive. Its beveled side is a real aesthetic bias since it actually limits the capacity of the bag.
