3/2551 Thailand Supreme
Court Opinion 32 (No. 630) 2008
The Coca Cola Company vs. the Department of Intellectual Property
The plaintiff submitted the registration for a trademark of a black and white picture of a bottle with white spots around the bottle in the category of goods in class 32, including mineral water, soft drinks, non-carbonated drinks, and other types of drinks. However, the Registrar did not allow the Thailand trademark registration. The reason for this decision was because the Register determined that the picture had no distinctive characteristics.
The plaintiff appealed to the Trademark Committee which affirmed the Registrar’s order.
The Intellectual Property and International Trade Court dismissed the case.
The plaintiff appealed to the Supreme Court.
The Supreme Court Division of Intellectual Property and International Trade reversed the order and explained their reasons for doing so. They stated that registration of a trademark must conform to the requirements of section 6 of the Trademark Act, amended by the Trademark Act (No. 2). It must contain distinctive characteristics according to section 7, and not with prohibited characteristics according to section 8, and not having similarity or likeness with a registered trademark of another person which would cause confusion and mislead others as to the true owner of the product, or the source of the product.
Moreover, section 13 of the Trademark Act did not clearly define the term “distinctive characteristics,” although the first paragraph of section 7 stated: “A trademark with a distinctive characteristic is a trademark in which persons using the product are aware and understand that the product with that trademark is different from other products,” and paragraph 2 of section 7 states that: “A trademark with, or comprised of, the following characteristics is deemed a trademark with specified characteristics… (6) a created picture.”
Therefore, when reviewing the “picture of a bottle” in which registration of the trademark was requested by the plaintiff, the trademark possessed unique, distinctive characteristics, with a curvature and a bulge, and particularly with a curved pattern of spots of equal distance around the bottle. It can be seen that the picture of the bottle has characteristics dissimilar to other bottles, and it is an originally created picture according to paragraph 2 (6), section 7 of the Trademark Act. It is deemed that the trademark has distinctive characteristics in itself so that persons using the product are aware and understand that the product associated with the plaintiff’s trademark is dissimilar from other products. Consequently, the plaintiff’s bottle trademark is one with distinctive characteristics according to section 7.