The 2nd Instance Court of Macao has confirmed refusal of registration to two trademarks which had been applied by Exxon Mobil Corporation concerning a coloured gas cylinder.
The marks depict a gas cylinder represented in a two-point perspective, in “blue” or “red” as claimed. The marks were classified as “figurative marks” and not as tridimensional marks. The list of goods covers “Industrial oils and fats; lubricants; products to absorb, water and turn on dust; fuels (including motor gasoline) and lighting materials; candles and wicks for lighting; gases; butane; propane; liquefied petroleum gas” in class 4.
The examiner of the Trademark Office of Macao refused both applications. He considered that the marks lack distinctive character as the signs are common or customary in trade. The applicant appealed to the 1st instance Court of Macao alleging that the Office did not duly consider the signs, namely the colour claim. However the court confirmed the Office decisions.
In the appeal to the 2nd Instance, the court also confirmed the earlier decisions. According to the 2nd Instance court, the marks applied should be interpreted as coloured tridimensional marks. The court said that 3D marks are registrable in Macao provided that the shapes in question are not usual and have sufficient distinctive character. However “the signs in the present case correspond to a typical and usual sign that any gas trading company (and/or similar fuel) uses”. In this way they do not meet the required distinctiveness because they lack the unusual or idiosyncratic nature of their form that leads the consumer to "mark it in his memory". As to the colour claims the court found that, such colors, by itself, without any work of ornamentation or adornment, “do not confer any distinctive character” and “does not give them any originality differentiating enough for the purpose”.