90According to settled case-law, the criteria for assessing the distinctive character of three-dimensional trade marks consisting of the shape of the product itself are no different from those applicable to other categories of trade mark (judgments in Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30, and Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 45). However, for the purpose of applying those criteria, the perception of the average consumer is not necessarily the same in relation to a three-dimensional mark consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent of the appearance of the products it designates. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish distinctive character in relation to such a three-dimensional mark than in relation to a word or figurative mark (judgments in Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30, and Freixenet v OHIM, C‑344/10 P and C‑345/10 P, EU:C:2011:680, paragraph 46).
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.