About 60 years ago, a truck driver complained against Julius Sämann, a local chemist, about the smell in his truck caused by spilled milk. Sämann was just experimenting with preserving essences of pine trees. Not much later he had developed his first air freshener especially for cars. This was named CAR-FRESHNER, the shape of the product was the shape of a pine tree. The product was a huge success and everyone recognized CAR-FRESHNER especially from the shape of the product.
In view of the worldwide demand of the trademark Sämann registered the 3D mark in many countries, also in the European Union. In all black (left) and also only the outline.
Against these two registrations a Portuguese company recently filed a revocation action. Probably this was not about the use of the mark. As also stated in the defense, only in the EU 56 million of these air fresheners are sold. The real question was probably whether the mark was used as registered. Due to recent policy changes the use of a trademark in colour sometimes does not constitute use of a trademark registered in black / white.
But the OHIM is satisfied with the use. It has also seen use of the two registered trademarks as a variant, despite a word Wunderbaum which does not influence the use. In our view, a correct decision, as if you see the different varieties color is just a variable, and not a constant factor that contributes to the distinctive character of the mark.
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