In July 2025, the European Union General Court rejected an appeal against an earlier decision of the Board of Appeal (reported on in our previous article Cipla Europe NV v Glaxo Group Ltd: can a 3D trade mark be distinctive?), confirming that Glaxo’s registration for the three-dimensional inhaler mark is invalid.
The Court held that “It is apparent from the evidence produced before the Board of Appeal… that, at the time when the application for registration of the contested mark was filed, the use of colours, including in the form of a combination of two colours, on inhalers used for the treatment of respiratory ailments was common practice on the relevant market”.
Furthermore, the shape of the inhaler was considered to be the standard shape of a metered dose inhaler for the treatment of respiratory ailments.
As a result, the Court concluded the Board of Appeal was right to take the view that Glaxo’s three-dimensional mark did not depart significantly from the norms and customs of the sector.
Comment
A distinctive shape to a product or its packaging can add considerable value to a brand. However, shapes can be challenging to register in the UK and EU. They are often not considered to be inherently distinctive, as consumers will typically see them as decorative or functional, rather than as indicating the origin of the product. Pharmaceutical shapes are also particularly vulnerable to objections based on the shape being necessary to obtain a technical result.
We explore the kinds of shapes that can be registered, their value in enforcement, and the challenges faced in our article Non-traditional pharma trade marks: shapes.
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