When less is more - On the protectability, scope of protection and efficacy of simple figurative marks

This article analyzes the protectability and scope of protection of such signs. In particular, it addresses the question of why simple but well-designed figurative marks often enjoy strong trademark protection, while "excessively simple" geometric shapes usually cannot be monopolized.

1. The protectability of simple and excessively simple figurative marks

1.1 Excessively basic geometric shapes and simple figurative marks - where is the limit?

A simple rectangle, a circle or a line – such "excessively simple" basic geometric shapes are not registrable as a trademark unless they have acquired distinctive character through use (GC, judgment of October 23, 2024, Ref. T-307/23 para. 41 – sports shoe). The reason: they lack the distinctive character required for registration under Art. 7 (1) (b) EUTMR or Section 8 (2) No. 1 German Trademark Act "MarkenG"). Other basic geometric shapes without distinctive character are e.g. oval, pentagon, octagon etc. (see Federal Court of Justice, order of July 1, 2010, Ref. I ZB 68/09 – Hefteinband; GC, judgment of September 12, 2007, Ref. T-304/05 para. 22, 30 – pentagon; GC, judgment of September 25, 2015, Ref. T-209/14 para. 52 et seq. – octagonal green frame; GC, judgment of November 13, 2024, Ref. T-426/23 para. 28 et seq. – DEVICE OF BLUE AND YELLOW OVAL SHAPE (fig.)). 

A mark has distinctive character within the meaning of those provisions only if it is capable of identifying the goods and services concerned as originating from a particular undertaking and of distinguishing those goods from those of other undertakings (see ECJ, judgment of May 4, 1999, Ref. C-108 and 109/97, para. 46 – Chiemsee), so that the consumer who purchases the marked product has the opportunity to repeat this experience if it proves to be positive or to avoid it if it proves to be negative (see EUIPO, Second Board of Appeal, decision of January 7, 2025, Ref. R 1147/2024-2 para. 12 – myspicelabel). 

Distinctiveness is denied to signs which are "excessively simple" and are constituted by a basic geometrical figure, because consumers will likely not be able to remember such a basic shape precisely in its capacity as a distinctive sign, because the basic shape cannot stand out and distinguish itself from other signs, which in turn follow the same basic shape (cf. GC, judgment of November 13, 2024, Ref. T-426/23 para. 28 et seq. – DEVICE OF BLUE AND YELLOW OVAL SHAPE (fig.) - with further references): 

"[28] It is settled case-law that a sign which is excessively simple and is constituted by a basic geometrical figure, such as a circle, a line, a rectangle or a conventional pentagon, is not, in itself, capable of conveying a message which consumers will be able to remember, with the result that they will not regard it as a trade mark unless it has acquired distinctive character through use (see judgment of 29 September 2009, The Smiley Company v OHIM (Representation of half a smiley smile), T-139/08, EU:T:2009:364, paragraph 26 and the case-law cited).

[29] A representation of a basic geometrical figure can therefore fulfil an identifying function only if it includes elements capable of differentiating it from other representations of that figure and attracting the consumer's attention (see, to that effect, judgment of 12 September 2007, Cain Cellars v OHIM (Representation of a pentagon), T-304/05, not published, EU:T:2007:271, paragraph 23)."

In these cases, less is not more. In the end, it is nothing. 

If such a sign of excessive simplicity does make it into the trademark register, even slight variations are sufficient to create a completely different overall impression. This can have an impact on the likelihood of confusion in the context of the interaction between the similarity of the sign and the distinctiveness of the earlier mark or also on the question of genuine use to maintain the registration. The sporting goods manufacturer adidas, for example, learned this the hard way. Its trademark shown here,

which shows three vertical and parallel black equidistant stripes of equal width running from top to bottom against a white background, was classified as "extremely simple" by the Second Board of Appeal of the EUIPO without objection by the General Court, which is why even a slight deviation could create a completely different overall impression and could not be recognized as genuine use within the meaning of Art. 18 (1) EUTMR (in concreto, evidence of use which (i) showed three light stripes on a dark background instead of three dark stripes on a light background, (ii) showed oblique, diagonally aligned stripes or (iii) with deviations in width and length; cf. GC, judgment of June 19, 2019, Ref. T-307/17 para. 70 et seq. – Shoe Branding Europe).

However, these strict standards really only apply to "excessively" or "extremely simple" signs or "basic geometric shapes". Signs which are only slightly more complex, and therefore still "simple", but which do not fall into the category of "excessively simple" signs and basic geometric shapes, are generally inherently distinctive. In particular, simple design elements are easily accessible to visual perception. They can easily serve as an indication of origin, as is shown not least by the strong tendency towards ever greater simplification of figurative marks over time (Scheier/Lubberger, MarkenR 2014, 453, 465). It must therefore be viewed very critically when case law establishes the rule that "simple graphic design elements which - as is known to the public from experience – are usually used in advertising but also on the packaging of goods or even business letters in a merely ornamental, decorative form" are to be denied distinctive character (see Federal Court of Justice, decision of December 8, 1999, Ref. I ZB 25/97 – St. Pauli Girl). Rather, inherent distinctiveness should only be denied if it is shown that the respective simple design element is used identically or very similarly for decorative purposes in the relevant goods or services sector (see GC, judgment of April 13, 2011, Ref. T-202/09 para. 30 et seq. – Deichmann).

Otherwise, "simple" signs are inherently distinctive and, if registered, have average distinctiveness. For example, the following figurative mark was found by the General Court to have average rather than weak distinctiveness (GC, judgment of November 5, 2008, Ref. T-304/07 para. 46 et seq. – Calzaturificio Frau/Camper):

The figurative mark looks like a stylized bridge or a stylized arch. However, it is not a basic geometric shape such as a circle, a triangle, a parallelogram or rectangle. in any event, it also associatively conveys the meaning of a concrete object (bridge, arch), which goes far beyond an abstract basic geometric shape. The GC said in para. 48:

«[48] A questo proposito occorre rilevare, in primo luogo, che la commissione di ricorso ha constatato giustamente che i segni in conflitto non potevano essere descritti come rappresentativi di forme geometriche dotate di debole carattere distintivo. Infatti, la figura stilizzata rappresentata dal marchio anteriore si distingue chiaramente dalle forme geometriche semplici.»

Translation:

"[48] In that regard, it must first be borne in mind that the Board of Appeal rightly found that the signs at issue cannot be described as geometric shapes with a weak distinctive character. The fact is that the stylized figure represented by the earlier mark is clearly distinguishable from simple geometric shapes." 

Hummel's "chevron strip" also cannot be put on a par with the basic geometric shape of a chevron and, despite its simplicity, is "sufficiently complex not to be assessed as having a below-average distinctive character" (Hamburg District Court, judgment of February 20, 2014, Ref. 327 O 621/13 – Winkelband):

The same applies to the "Arcuate", the double curve on the back pockets of Levi's ® jeans. Thus the decision of the Swiss IPI of May 2, 2023, Ref. 102852, in which the opponent Levi Strauss & Co. had relied on the following trademark registration (CH trademark no. 613449 (fig)):

The IPI stated:

"The opponent's sign is perceived as a simplified silhouette of a bird in flight (see III.C.3. above). It is not limited to a common or obvious graphic representation of the goods in Class 25 at issue here, nor is it a representation of a typical, 'classic' shape or motif of the relevant goods (see also FAC B-2668/2016, E. 4.5 [last paragraph] – Croco (fig.) / MISS CROCO). Moreover, no direct descriptive meaning can be inferred from the opposing mark in relation to the goods in Class 25. Furthermore, the opponent's mark is not limited to a geometric shape (circle, square, rectangle, triangle)".

1.2 Simple yet salient figurative marks – highly distinctive thanks to good shaping ("gute Gestalt")

Simple but well-designed visual brands are particularly well remembered. This is where the Gestalt theory of perception comes into play. It states that our brain prefers to process certain patterns and structures. A "good form" ("gute Gestalt") is particularly salient and memorable because it:

• is clearly structured,
• has a simple, harmonious form,
• stands out from its surroundings.

Examples of simple but salient and recognizable figurative marks that follow the law of good form are:

• Nike Swoosh: A curved line with a clear dynamic.

• McDonald's "M": Two arches that form a harmonious unit.

• Double swing "Arcuate" on the back pockets of Levi's® jeans: two curves (arches) that form a harmonious unit and are reminiscent of the wings of an eagle or a seagull in flight.

• Apple logo: A stylized bitten apple – simple but unmistakable.

These trademarks are so strong because they work perfectly with human perception. Our brain loves structure and clarity – and that is exactly what these logos offer. Some background:

2. The Gestalt laws and their significance for trademark protection

Gestalt psychology was developed at the beginning of the 20th century by German psychologists such as Max Wertheimer (1880-1943), Wolfgang Köhler (1887-1967) and Kurt Koffka (1886-1941). It describes how the human mind organizes and interprets visual stimuli. 

Human perception is based on the categories of simplicity, completeness, regularity, symmetry, harmony and inner balance (Felser, Werbe- und Konsumentenpsychologie, 2nd ed. 2001, p. 121). The Gestalt principles summarize basic perceptual psychological conditions. They describe how human beings process complex visual stimuli and perceive their environment visually (Felser, Werbe- und Konsumentenpsychologie, 2nd ed. 2001, p. 121 et seqq.; Goldstein, Wahrnehmungspsychologie, 2nd German ed. 2002, p. 190 f., 192 ff.; Guski, Wahrnehmung, 1989, p. 52 et seqq.; Mayer/Illmann, Markt- und Werbepsychologie, 3rd ed. 2000, p. 434 et seqq.; Metzger, Gesetze des Sehens, 3rd ed. 1975, p. 25 et seqq.). For more information see here. 

These conditions are also taken into account in the graphically optimized design of logos by logo designers, with the aim of ensuring maximum salience, memorability and recognition (see Herling, Index Logo, 2nd ed. 2008, p. 11, 262 et seqq.; Linxweiler, Marken-Design, 2nd ed. 2004, p. 53 et seqq.)

Some Gestalt principles are particularly relevant for brand perception:

2.1 Good gestalt principle

The good gestalt principle (principle of good form, "Gesetz der guten Gestalt") states that our brain tends to perceive the simplest and clearest form of an image. A good logo is therefore simple and yet memorable. And it should have a broad rather than a narrow scope of protection. 

According to the good gestalt principle, human perception in the geometric-aesthetic area tends to suppress irregularities compared to the known ideal form (Düsseldorf Court of Appeals, judgment of April 9, 1976, Ref. 2 U 77/74, GRUR 1976, 595, 596 – Bayer/Rorer; Goldstein, Wahrnehmungspsychologie, 2nd German ed. 2002, p. 192 et seq.; Guski, Wahrnehmung, 1989, p. 54 et seqq..; Jacobi, Werbepsychologie. Ganzheits- und gestaltpsychologische Grundlagen der Werbung, 1972, p. 33; Mayer/Illmann, Markt- und Werbepsychologie, 3rd ed. 2000, p. 437; Metzger, Gesetze des Sehens, 3rd ed. 1975, p. 201 et seqq.). This is especially true for short-term perception and memory (Jacobi, Werbepsychologie. Ganzheits- und gestaltpsychologische Grundlagen der Werbung, 1972, p. 33). For example, we simply do not perceive a noticeable irregularity in a circle. This is because our perception is trained to recognize the ideal shape of a circle, even though the sensory stimuli do not quite match (Noelle-Neumann/Schramm, GRUR 1976, 51, 61). 

Swiss case law has long explicitly recognized that the "human brain is fundamentally less specific in distinguishing images than in distinguishing words. Perceived parts of shapes are abstracted and simplified in the mind into a salient overall shape if possible" (Federal Administrative Court, judgment of August 28, 2008, Ref. 4841/2007, E. 4 – Herz [fig.]/Herz [fig.] with reference to Federal Administrative Court, judgment of March 21, 2007, B-7506/2006, E. 7 – Karomuster [fig.]). This concept has yet to be established in harmonized European trademark law.

The simpler the shape, the more salient (recognizable) and the better the shape. Therefore, according to the principle of good form, human beings tend to find familiar, simple designs in unfamiliar structures (see Düsseldorf Court of Appeals, judgment of April 9, 1976, Ref. 2 U 77/74, GRUR 1976, 595, 596 – Bayer/Rorer; Köhler, GRUR 1950, 117, 124; Scheier/Lubberger, MarkenR 2014, 453 et seq.; Tilmann, GRUR 1980, 660, 669). This applies all the more to trademarks if the simple trademark has been made known to the public through many years of intensive use.

This may be one of the reasons for the decision of the French INPI of June 28, 2022, ref. OP 22-0097, in which the word/figurative mark "Makla Food" was considered similar to the double-arched "M" of McDonald's:

2.2 Closure principle

According to the closure principle, the human perception tends to automatically fill in gaps in shapes or lines so that they appear as complete figures. Our brain subconsciously fills in the missing information. This is why the WWF panda logo with incomplete lines is still immediately recognized as a panda:

Human beings instantly, automatically, and unconsciously search for familiar patterns and structures. This is called "pattern recognition" (Scheier/Lubberger, MarkenR 2014, 453, 456 f.). Roughly speaking, they tend to perceive what they would expect from experience (Felser, Werbe- und Konsumentenpsychologie, 2nd ed. 2001 p. 121; Vernon, Wahrnehmung und Erfahrung, 2nd ed. 1997, p. 90 ff.; v. Holzschuher/Jaworski, Psychologische Grundlagen der Werbung, 1956, p. 89). Classical psychology called this "assimilation" (Wundt, Grundriß der Psychologie, 15th ed. 1922, p. 278). Today, this is usually referred to as "confirmation bias" (Scheier/Lubberger, MarkenR 2014, 453, 460; Ackermann, MarkenR 2017, 300, 310 f.). 

For trademarks, this means that a well-designed figurative mark does not have to explicitly show every detail - perception automatically fills in the gaps

This also applies in the event of infringement. An instructive example of this is the "SKECHERS II" case recently decided by the Frankfurt Court of Appeals. Here, the following signs were in conflict, the earlier mark registered for "footwear" in class 25 and the younger sign used for sneakers (Frankfurt Court of Appeals, judgment of May 19, 2022, Ref. 6 U 313/21 – SKECHERS II): 

The Frankfurt Court of Appeals affirmed the similarity of the signs and stated the following:

"The earlier mark on which the injunction is based is a figurative mark in the shape of a stylized 'S', which is characterized by the fact that three crossbars running almost horizontally to each other are connected to each other at the top left and bottom right with a partially curved line. The contested sign also consists of three horizontal bars, which are, however, only connected to each other at the bottom right. The Senate is ... convinced that this gives the impression of a 'cut-off' S to the public."

2.3 Principle of figure-ground articulation

The principle of figure-ground articulation describes our brain's ability to distinguish objects from their background. Certain areas are perceived as "figure" (the main object) and others as "ground" (the background). A well-designed logo deliberately exploits this effect to achieve clear differentiation and high recognizability. Logos that work with negative space use this principle particularly effectively.

Example: The FedEx logo contains an arrow between the letters "E" and "x", which is only created through the clever use of negative space. Our brain automatically sets this figure apart from the background and recognizes it as an independent element (highlighted on the right):

A strong logo stands out clearly from the background. The contrast between the figure and the background enhances its perceptibility. The Apple logo works both in black on white and in white on black – it always remains recognizable.

The principle of figure-ground articulation appears to be the basis – albeit not explicitly stated – for the case law which holds that, in the case of a reversal of contrast, it is in principle irrelevant for the question of the similarity of signs whether a sign is dark on a light background or light on a dark background (see Federal Court of Justice, order of May 11, 2006, Ref. I ZB 28/04 para. 23 – Malteserkreuz I).

2.4 Common fate principle

The common fate principle states that elements that move in the same direction or show a common change are perceived as belonging together. This means that evenly arranged points are interpreted as belonging together and are unconsciously added to form an (implied) line (source: Mayer/Illmann, Markt- und Werbepsychologie, 3rd ed. 2000, p. 437):

Example: A design that forms a double curve with dots is perceived as a smoothly curved shape, even though it is not executed with a continuous line or closely spaced stitches, but with dots that are more or less far apart. The human brain automatically connects the dots to form a continuous curve. It is therefore not surprising that the following design, for example, has been found to infringe the "Arcuate" trademark (Hamburg Court of Appeals, judgment of September 18, 2014, Ref. 3 U 96/12 – Arcuate):

The common fate principle may also explain why dynamic logos that suggest a direction of movement are particularly memorable (e.g. Puma's leaping cat of prey).

2.5 Continuity principle

Continuously connected elements of the same shape are each perceived as a unit, i.e. in the following illustration as a double swing on the one hand and as a meandering line on the other (Mayer/Illmann, Markt- und Werbepsychologie, 3rd ed. 2000, p. 437):

This is particularly true when the continuity principle interacts with the good gestalt principle, resulting in "pattern recognition". This is illustrated by the following example (Guski, Wahrnehmung, 1989, p. 55):

As figures (c) and (d) show, it is theoretically quite possible to recognize something other than an overlapping circle and square in the overlapping elements of figure (a). Nevertheless, the figure will only be perceived as an overlapping circle and square according to variant (b).

Of course, this also comes into play when comparing signs. For example, the "Arcuate", a good shape in terms of the good shape principle, is recognized due to its balanced, harmonious basic shape and due to the continuity principle, even if it is combined with other, opposing design elements in the infringing embodiment, e.g. as in the case of Tribunal de commerce de Bruxelles, judgment of March 4, 2015, Ref. A/14/11486 - Levi Strauss/Cortefiel. The alternative perception of three pointed elements (a larger one on the left, a larger one on the right, and a small one in the middle) does not take place; one unconsciously perceives the double curves tapering downwards:

3. Modern design aesthetics: why simple logos are more successful

The Gestalt principles not only provide a rationale for the wide range of similarities among simple, well-designed figurative marks, depending on the circumstances of the particular case. They also explain why certain simple logos are so successful: they correspond to the natural mechanisms of our perception.

In recent years, there has been a clear trend towards simplifying brand logos more and more. Increasing digitalization in particular has led to brand logos being simplified further and further. Companies are modernizing their logos by removing unnecessary details and reducing the design to the essentials (see Goldmann, GRUR 2014, 724, 726 ff.). Companies are increasingly relying on minimalist designs because they:

1. work better on digital displays (clear lines, little detail);
2. are recorded more quickly (lower cognitive load) and
3. can be used more flexibly (from smartphones to billboards).

Examples of how complex logos are modernized in their graphic elements, simplified in their visual language and reduced to basic structures are:

• BMW: Simplification of the three-dimensional logo to a flat, minimalist representation:

• Volkswagen: Reduction of the three-dimensional logo in the 2012 version to a clear, two-dimensional form in 2019:

• Mastercard: When the logo from 1996 was revised in 2016, the lettering and the striped intersection were removed, leaving just two overlapping circles with an orange intersection:

These developments prove that simple, well-designed signs are particularly suitable as brands – precisely because they are easy to grasp and quickly become deeply embedded in the consumer's memory when used intensively.

4. Conclusion: simplicity as a success factor for strong brands

Simple basic geometric shapes are often not protectable because they are too abstract. But simple, well-designed logos can have a high degree of recognizability and therefore a broad scope of protection.

The Gestalt principles help to explain why certain signs are more successful than others. Companies are increasingly focusing on minimalism – because a clear, reduced form appeals best to our brains.

The lesson for brand owners: less is more - but only if the brand design is perfect.

Our extensive experience in trademark law enables us to provide expert guidance on the registration, protection, and enforcement of figurative marks. Whether you seek to safeguard your brand identity or need strategic advice on trademark disputes, our specialized team is here to support you with comprehensive legal expertise and tailored solutions.