Vibrator With 3 Balls Can’t Win EU Trademark, Court Says

A vibrating sex toy in the shape of three balls can’t win European Union-wide trademark protection, an EU court ruled today.

“The shape in question doesn’t diverge considerably from the norm or what’s usual in that sector,” the EU General Court in Luxembourg ruled today. “Even if vibrators often have an elongated shape, several other shapes do exist in this market alongside each other with products that have a spherical, rounded or flattened appearance.”

Fun Factory GmbH, a Bremen, Germany-based company selling sex toys, sought the EU-wide intellectual property right for the shape, which it said distinguishes itself from the usual “pole- like” design of such products. The EU trademark agency in Alicante, Spain, disagreed in a decision in January 2012.

OHIM, the EU trademark agency, decided last year that the vibrator’s shape was functional and adapted to the human body, and as such not distinctive enough to gain protection.

“The shape of the product is determined by its purpose,” the EU agency said last year. “There’s no clear distinction from the usual design and generic shape” of such products.

Fun Factory declined to immediately comment on the ruling, which can be appealed a last time to the EU Court of Justice.

The case is: T-137/12, FunFactory v. OHIM.

To contact the reporter on this story: Stephanie Bodoni in Luxembourg at sbodoni@bloomberg.net

To contact the editor responsible for this story: Anthony Aarons at aaarons@bloomberg.net

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