Sainsburys success invalidation against Babybel wax trade mark

As a child, there was nothing more exciting than to find the wonderful red round that was a Babybel in your lunchbox.

As a child, there was nothing more exciting than to find the wonderful red round that was a Babybel in your lunchbox.

However, what is surprising to some is that this wax coating was protected by a trade mark. Not any more!

Supermarket Sainsburys has successfully filed an invalidation application against this mark, which will now be cancelled.

The mark was owned by Fromageries Bel SA, registered in 1996. The registration covered a 3D round wax coating with the colour limited to red.

Sainsburys filed an invalidity application on the grounds that the colour note was ambiguous. They argued that there was a mismatch between the verbal description and the pictorial description of the mark.

In addition, Sainsburys argued that one view of the mark was not enough to represent it as a 3D shape mark.

Considering the arguments, the UK Intellectual Property Office (UKIPO) rejected Sainsbury’s arguments in respect of the shape but did accept their points in respect of the colour.

The examiner stated that the colour red was an essential characteristic of the mark and therefore the description given was not enough to be a definition with ‘sufficient precision or clarity’.

Therefore, on this point, the mark was declared invalid and was cancelled.

This may open the floodgates for some more round cheeses to pop up on our supermarket shelves, and certainly throws a bit more doubt over the longevity of shape marks.

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