## Facts

- Automobili Lamborghini Holding S.p.A. applied to register a Community trade mark for a feature of its sports cars: doors opening vertically upwards on a swivelling axis (a “scissor door” configuration/movement) for motor vehicles.
- An OHIM examiner refused registration as devoid of distinctive character for the relevant goods.
- The examiner reasoned that, even if vertically opening doors appear unusual compared to ordinary mass-market cars, they were considered common within the luxury sports-car segment.
- Lamborghini appealed, arguing the specific upward-opening door movement was distinctive and recognized as indicating Lamborghini as the commercial source.
- The First Board of Appeal considered both inherent distinctiveness and whether the feature had acquired distinctiveness through use.

## Issues

1. Whether a sign consisting of the configuration and/or movement of vertically opening car doors has distinctive character for motor vehicles in the relevant market.
2. Whether distinctiveness should be assessed against consumer expectations in the general car market or within the luxury sports-car sector.
3. Whether the applicant showed acquired distinctiveness through use such that consumers perceive the door configuration/movement as an indicator of trade origin.

## Decision

- The First Board of Appeal dismissed the appeal and affirmed the examiner’s refusal.
- The Board held the sign lacked inherent distinctive character for the relevant goods and public.
- The Board found Lamborghini did not prove acquired distinctiveness through use across the Community sufficient to overcome the inherent deficiency.

## Legal Principles

- A registrable trade mark must enable the relevant public to distinguish one undertaking’s goods from those of others.
- For non-traditional signs such as product configurations or movements, distinctiveness requires a sufficient departure from the norms or customs of the relevant sector so consumers perceive the feature as indicating origin rather than as design or function.
- Distinctiveness is assessed with reference to the relevant public and market segment for the goods, which may be a specialized niche rather than the general consumer market.
- Unusual appearance compared to mass-market products does not establish distinctiveness if the feature is customary in the pertinent sector.
- Where inherent distinctiveness is lacking, the applicant must provide persuasive evidence that a significant portion of the relevant public recognizes the feature itself as a trade mark (not merely as a design characteristic), throughout the relevant territory.

## Conclusion

The Board refused trade mark protection for Lamborghini’s vertically opening door configuration/movement because it was not inherently distinctive within the luxury sports-car sector and Lamborghini failed to show that consumers had come to treat the feature as a stand-alone indicator of trade origin.


Automobili Lamborghini Holding S.p.A.’s Application, Case R 772/2001-1, [2005] E.T.M.R. 43 (OHIM First Bd. App. 2003)