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On 4 February 2022, the EU Court of Justice (ECJ) issued its decision in case C-672/21 P (Eos Products Sàrl v. EUIPO) concerning the registrability of a three-dimensional trademark consisting of a spherical egg-shaped recipient for lip balms (the “Trademark”). The CJEU decision dismissed the appeal filed by the Trademark applicant against the first instance decision of the General Court, which found that the Trademark could not be registered as it was devoid of distinctive character (by applying similar principles to that adopted in the Guerlain lipstick case, which we already discussed in our newsletters). The General Court decision held that inter alia the Trademark did not substantially depart from the usual shapes adopted in the relevant sector, where spherical shapes are often adopted to commercialise lip balms. The applicant of the Trademark alleged that the General Court did not correctly apply European law on three-dimensional trademarks, but the ECJ found these claims not to be substantiated and specified, and thus rejected the Trademark applicant’s appeal. 

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