What can be a Community trade mark
There are two issues arising from the definition of a trade mark that must be taken into account before creating and filing your trade mark.
Your trade mark has to be represented graphically and must be capable of distinguishing your products or services from those of your competitors.
The first issue is relatively straightforward: if you can represent your mark graphically in this box, it is eligible for consideration as a registered trade mark here at OHIM.
Print this box and draw in it. What looks right in it?
It might seem childish, but it's very important that you draw your mark. This is one of the first principles of trade mark law. Trade marks must be capable of 'graphical representation'.
Concepts, like the feeling one gets when one turns the ignition key of a car, cannot be registered. Not all trade marks can be registered.
The second issue requires a little more explanation.
To be eligible for registration, your trade mark must be distinctive and must not describe what you sell.
Your trade mark should be distinctive
Consumers should be able to recognise your sign for what it is, i.e. as an indication of origin. It should distinguish you from other companies in the marketplace so that you can protect and build your brand identity and value.
Your trade mark should not describe what you sell
Your trade mark should not monopolise a sign that merely describes the goods and/or services that you offer. Such signs should remain available for everybody: for you and your competitors.
Still not clear? The following example should dispel any remaining doubts
A consumer would not see this bottle, as presented here, as a distinctive sign capable of distinguishing one company from another. This sign should remain available for all companies.
In this case, consumers will not see the bottle as distinctive, and the word 'wine' simply describes the content of the bottle. They will see it as a product description.
Registrable trade mark
However, in this example, although the bottle alone may not be distinctive, the addition on the label of a distinctive name would make consumers see it as a trade mark indicating one particular brand.
OHIM will refuse your trade mark application if it is believed not to fulfil these and certain other requirements. If you wish, you can check other reasons why your trade mark could be refused (also called absolute grounds).
If you are in any doubt, you should seek professional guidance. We cannot provide such advice.