Case Background and Trademark Application
On July 26, 2023, the German company KCT GMBH & CO KG filed an application to register the trademark shown below to distinguish a specific type of window; the trademark was classified asa motion mark.
The following clarification was included in the trademark description:“When opened, the window sash moves downward and outward relative to the fixed frame. The window sash slides downward along the fixed frame. In addition, a black spacer is visible on both sides of the movable window frame.”
The trademark application was rejected. The subsequent appeal was dismissed by a decision dated October 28, 2024 (R 740/2024-2). The Board of Appeal found that the trademark in question consisted exclusively of a specific feature necessary to achieve the technical result intended by the product in question; that is, to allow light and air to enter an enclosed space by opening and closing the window [Article 7(1)(e)(ii) of the EUTMR 2017/1001]. It also found that the mark lacked distinctiveness [Article 7(1)(b) of the EU Trade Mark Regulation 2017/1001].
The General Court of the European Union (hereinafter “GC”), by judgment of January 14, 2026 (T-9/25) dismisses the action and confirms that the trademark applied for falls under Article 7(1)(e)(ii) of the EU Trademark Regulation 2017/1001 (technical effect), without addressing the issue of lack of distinctiveness.
The essential characteristics of the mark, as described by KCT in its arguments, are as follows: a) the movement of the inner rectangular white frame within the outer rectangular frame; b) the appearance and disappearance of the black dividers between the frames during that movement; c) the change in color at the top and bottom of the inner frame during that movement.
In KCT’s view, the characteristics of the mark, once examined and analyzed individually and collectively, lead to the conclusion that the “moving window” does not consist exclusively of a shape or other specific feature of the product intended to achieve a technical result. Furthermore, it is argued that the movement itself differs from what is commonly known in the industry and that there are other alternatives for achieving the result; it is also argued that the color change that occurs is decorative and, as such, constitutes an essential element.
Applicable Legal Framework
The General Court begins by setting forth the principles underlying the prohibition in Article 7(1)(e)(ii) of Regulation (EU) 2017/1001, based on the consideration that its purpose is to prevent the use of a trademark to monopolize technical solutions or functional characteristics of a product that would be protected by other forms of industrial property with limited-term protection (judgment of September 18, 2014, Hauck, C-205/13, EU:C:2014:2233, paragraph 19).
The first step in assessing the prohibition set forth in Article 7.1(2)(ii) of the EU Trade Mark Regulation 201771001 may, depending on the sign in question, be based on the overall impression that the sign creates visually or on the identification of its essential characteristics (Judgment of April 23, 2020, Gömböc, C-237/19, EU:C:2020:296, para. 29).
Once this preliminary examination has been conducted, it must be determined whether all the features are essential to fulfilling a technical function, since this prohibition does not apply if a non-functional element—such as an ornamental or fanciful element—plays an important role (judgment of September 14, 2010, Lego Juris v. OHIM, C-48/09 P, EU:C:2010:516, paragraph 72).
Finally, the analysis of technical features must be based on objective and reliable information, such as that contained in the trademark registration application or other data derived from the existence of other industrial property rights, research, expert opinions, scientific publications, etc. (Judgment of April 23, 2020, Gömböc, C-237/19, EU:C:2020:296, paragraph 34).
Assessment by the General Court
The General Court confirms that the mark contains essential characteristics that serve a technical function. The fundamental characteristic of the mark is a sequence of movements consisting of opening and closing a window. This movement involves the opening and closing mechanisms attached to the inner frame, which do not play an independent role in relation to the sequence of movements necessary to achieve the intended technical result.
The function of the spacers is purely technical, as they are an important component that helps stabilize and reinforce the window and support the window sash as it moves forward.
The TG’s first conclusion is that all the essential characteristics of the trademark applied for—that is, the opening and closing motion of the window, including the movement of the dividers—are necessary to achieve the technical result of the product that the trademark is intended to distinguish; therefore, it falls under Article 7.1(e)(ii) of the EUTM Regulation 2017/1001.
The sign incorporates other elements that the TG does not consider essential, such as the color change that occurs when the window is opened or closed—which can only be perceived as a shadow that appears and disappears as the window opens and closes. This change represents merely the normal interplay of light and shadow on a moving three-dimensional object and is not particularly striking; it is considered minor. This characteristic serves to refute another argument based on the possible ornamental nature of this aspect, which would have no bearing on the matter since it is not relevant.
Interestingly, the “Common Practice on New Types of Trademarks: Examination of Formal Requirements and Grounds for Refusal” (CP11) acknowledges that motion trademarks are not limited to signs that depict movement, but may also consist of elements that show a change in the position of the elements, such as a change in color. However, the TG clarifies that the assessment must be made on a case-by-case basis, and the fact that, a priori, a change in color may constitute an essential element of a motion mark does not mean that, in all cases, such a change constitutes an essential element—which is precisely what occurs in the case at hand.
Likewise, the argument that there are alternative technical solutions for opening and closing windows—which is the functionality of the disputed mark—is also unacceptable. As stated above, the fact that such alternatives exist does not mean that the prohibition does not apply, since their existence does not imply that other operators may use the technical solution embodied in the disputed mark.
Indeed, if a trademark with such a characteristic is granted, even if alternatives exist, competitors could be prohibited from using goods with an identical or similar characteristic [judgments of September 14, 2010, Lego Juris v. OHIM, C-48/09 P, EU:C:2010:516, paragraphs 53–56, and of January 31, 2018, Novartis v. EUIPO – SK Chemicals (Representation of a transdermal patch), T-44/16, EU:T:2018:48, paragraph 56].
Therefore, based on all these criteria, the General Court concludes that the trademark in question infringes Article 7(1)(e)(ii) of the EU Trademark Regulation 2017/1001, without assessing its distinctiveness. To that end, it reiterates the principle that, in order to refuse a European Union trademark, it is sufficient that it infringes any one of the prohibitions set forth in Article 7(1) of the EU Trademark Regulation 2017/1001.
Furthermore, it should be noted that an appeal may be filed with the Court of Justice against this judgment within two months of the date of its notification.
Former Partner ELZABURU
IP Academic Advisor (Trademarks)