Appeal decision report (Salonpas)
May 12, 2020
|Appeal number||Rejection2019-8030（JP Appl. No. 2017-116948）|
|Case summary||Plaster package design was allowed to be register based on acquired distinctiveness through use as a 3D trademark|
|Date of decision||February 10, 2020|
|Demandant (Applicant)||HISAMITSU PHARMACEUTICAL CO., INC.|
|Designated Goods and Class(es)||
Plasters in class 5
The demandant has continuously used the 3D shape of the trademark of this application on its package of the “plasters” since 2015. Given that it is sold and advertised through television commercials and newspapers nationwide, and has a considerable sales and high market share, it has become well known among consumers.
As a result, the consumer can recognize the 3D shape as an indication of the product pertaining to the demandant’s business.
In this case, the Appeal Board found that the 3D shape of the package has become well known after being used just for more than 4 years. Recently, depending on the scale of sales and the amount of advertisement, it is apt to be well known even after about 3 to 4 years of use. Considering that this is the shape of the packaging container, not the shape of the product itself, and that it is a combination of relatively complicated shapes and colors, and that “Salonpas” is the demandant’s famous brand, the Board may have judged in a relatively lenient manner.
Furthermore, the figure on the upper front side of the present application was registered as a position mark being recognized as a well-known mark to this case, and this may have had an advantageous effect on this case.