Judgment_paragraph 147 · CEDC International sp. z o.o. v European Union Intellectual Property Office (T-796/16)

147As regards a three-dimensional mark consisting of the shape of the product itself, to reach the conclusion that the earlier mark was actually used in accordance with its essential function, the proof of use must take the form of elements which enable an unequivocal conclusion to be drawn that the consumer is in a position to associate the shape protected by the earlier mark with a particular undertaking (see, to that effect, judgments of 27 September 2018, M J Quinlan & Associates v EUIPO – Intersnack Group (Shape of a kangaroo), T‑219/17, not published, EU:T:2018:610, paragraph 33, and of 28 February 2019, PEPERO original, T‑459/18, not published, EU:T:2019:119, paragraph 72).