Joris DeeneA trademark consisting only of a simple basic geometric shape - a circle, a rectangle, a flat disc - cannot in principle be protected as a valid shape mark. This was confirmed by the president of the French-speaking business court in Brussels on Nov. 5, 2025, in the case brought by US-based Abbott Diabetes Care against Chinese manufacturer Sinocare. The Benelux trademark for the white round disc of the FreeStyle Libre glucose sensor was declared invalid and the injunction claim against the competing iCan i3 CGM device was dismissed. The case is particularly instructive because market leader Abbott - with a 45 % market share and millions of marketing dollars on the table - failed to show that the shape had become distinctive through use.
The facts
Abbott has been marketing the FreeStyle Libre system since 2014 (Netherlands) and 2016 (Belgium and Luxembourg). This is a device for continuous glucose monitoring (CGM): a white round disc stuck on the upper arm or abdomen that continuously measures glucose levels. The product targets both diabetic patients and consumers who want to monitor their blood sugar for non-medical reasons.
On October 28, 2020, Abbott applied for a three-dimensional shape mark for Class 10 at the Benelux Office for Intellectual Property. The BOIP first refused, due to lack of distinctive character and because the shape seems necessary for the technical result. Only after an elaborate defense of nineteen pages with more than fifty attachments is the mark finally registered on April 13, 2022 under number 1428128.
In late 2023, Sinocare launches its iCan i3 CGM - also a white round disc with similar functionality.
Abbott sues both Sinocare and Obelis S.A., Sinocare's European trustee, on June 14 and 24, 2024. Sinocare responds with a counterclaim for cancellation of the trademark.
The decision
The president first addresses that counterclaim - logically, because the injunction claim hinges on the validity of the invoked mark. Registration by the BOIP only creates a presumption of validity; the national court remains free to review it.
No intrinsic distinctiveness
Pursuant to Art. 2.2a(1)(b) Benelux Treaty on Intellectual Property (BTIP) , trademarks without distinctive character are refused or declared invalid. For shape marks consisting of the appearance of the product itself, the same criteria apply in principle as for word or figurative marks, but with an important nuance from European case law: consumers are not accustomed to inferring the origin of a product from its shape, and only a shape that deviates significantly from the norm or the customs of the industry can perform its origin function (ECJ Oct. 7, 2004, C-136/02 P, ‘May Instrument’; ECJ 15 May 2014, C-97/12 P, ‘Louis Vuitton Malletier/BHIM’).
Abbott argued for a narrow delineation of the relevant sector to CGM devices. The court rejected that: market habits in this niche are not substantially different from those in the broader medical device sector, where white round or rounded shapes are common. The FreeStyle Libre's cylindrical, white profile is a basic geometric shape with no special features. The specifications listed by Abbott - two-tone side profile, translucent adhesion zone, smooth rounded edges - are only observable up close and are not sufficient to make the average consumer identify the origin.
The judge also points to the Oct. 22, 2024, ruling of the Oberster Gerichtshof (AT) in the parallel Austrian proceedings between the same parties, which reached the same conclusion: a flat cylinder with a circular base is “the simplest shape that meets the use requirements of a body sensor” and cannot be monopolized as a shape mark.
No distinctiveness acquired through use
In the alternative, Abbott relied on Article 2.2a(3) BTIP: a shape without intrinsically distinctive character can still acquire it through intensive use. To do so, the trademark owner must demonstrate both the extent of use and its effect on the public's perception.
The judge acknowledged that Abbott had invested more than $5 million in marketing, but pointed out that the device always appeared in all campaigns along with the word marks “Abbott” and “FreeStyle Libre.” What proportion of the accrued fame accrued solely to the circular disc - and not to the accompanying word marks - can therefore not be determined.
The April 2025 Pflüger market study, submitted by Abbott to substantiate awareness of the form, fell down on several methodological points. The sample of five hundred respondents consisted exclusively of diabetic patients or parents of diabetic children - whereas Abbott itself had defined the target audience more broadly, including non-medical users and healthcare professionals. In addition, type 1 diabetics (5 to 10 % of the diabetes population) accounted for 20 % of the respondents, over-representing those with in-depth industry knowledge. The online sampling without thorough identity verification - only 20 % of respondents were verified - confirms the fragility of the results, especially since Dr. Pflüger himself had previously written that online surveys lend themselves poorly to legal opinion surveys.
No slavish imitation or deception
Finally, the court deals with the subsidiary bases from art. VI.104 and VI.104/1, 1° and 3° CEL (unfair market practices) and art. VI.93-VI.100 CEL (deceptive trade practices).
Based on the Orac case law of the Court of Cassation mere copying is in principle free. Only when additional deloyal circumstances - for example, intentional likelihood of confusion - are proven, does the copying become unlawful. Abbott does not provide such evidence. Moreover, the court notes that both devices are marketed under clearly different word marks and that their packaging differs greatly in color, layout and announced functionalities. The audience - patients and healthcare professionals - otherwise exhibits a high level of attention.
The dictum speaks for itself: the trademark is declared invalid, removal from the Benelux trademark register is ordered, and Abbott is ordered jointly and severally to pay the legal costs (EUR 15,697.67). The judgment has been appealed.
Legal analysis and interpretation
The relevant sector is defined broadly - and this is not a detail
Abbott had a strategic interest in drawing the relevant sector as narrowly as possible: CGM devices only. Within that microsector, it could point to the fact that, at the time of filing (2020), no other manufacturer was marketing a round white disc. The court rejected that approach, citing the ECJ case law which allows consideration of a broader sector when market habits warrant it.
That delineation is debatable. CGM devices differ functionally and commercially from, say, cochlear implants or menstrual pain devices referred to by the court. From the perspective of the target consumer of a CGM system (the diabetic patient), the relevant frame of reference may be the glucose measurement market rather than the entire medical device sector. At the same time, the choice is defensible: the more narrowly the sector is defined, the more easily a form looks “deviant” - and the more room is created for monopolization of basic forms by first movers. The court pragmatically opts for the broader delineation, a choice also made in the Austrian parallel judgment.
The methodological bar for market research is high
The substantive core criticism of the Pflüger study - the dichotomy between the target audience defined by the brand owner and the audience actually surveyed - provides an important practical lesson. Those who capitalize on use-derived distinctiveness must consistently define and consistently survey their target audience. Choosing to survey only the most informed part of the target audience “for practical reasons” can turn against the brand owner: it indicates self-selection rather than representativeness.
The strict approach to online searches is also noteworthy. The court accepts that technological evolutions make online searches more reliable, but places onerous requirements for identity verification. A verification rate of 20 % is qualified as insufficient, without setting a threshold. In practice, this means that market studies in IP litigation must again be conducted primarily in person or through verified panels, or achieve a much higher verification rate.
Marketing investment proves no integration without isolated form communication
The reasoning around the five million dollar marketing investment is perhaps the most far-reaching part of the ruling. The court does not accept that a trademark owner who always portrays its shape along with strong word marks can afterwards attribute the entire accumulated name recognition to that shape alone. Consequently, anyone planning to have a product shape recognized as a trademark later on the grounds of acquired distinctiveness through familiarising would do well to also build out campaigns early on in which the shape takes center stage without accompanying word marks - a commercially counterintuitive, but legally sound strategy.
Specifically, what does this mean?
For brand owners in medical devices and consumer health. A 3D shape mark is not an impossibility in this sector, but an exception. Those who wish to protect their product form would do well to parallel apply for a design right apply at the time of market introduction: this provides more effective protection for the appearance, provided the novelty requirement is met. A Benelux design or European design offers five to twenty-five years of protection and sets much lower thresholds in terms of distinctiveness than a shape mark. For those who do choose the trademark route, a solid acquired distinctiveness file is important: keep documentary evidence of media exposure, reach figures and market studies, and make sure that campaigns also portray the shape on its own - without accompanying word marks.
For producers and importers of generic alternatives. The judgement confirms that a quasi-identical product form does not in itself constitute an unfair market practice. However, caution is still required: a striking packaging, a distinctive own word mark and own marketing material are essential to avoid the “additional circumstances” that make slavish imitation unlawful. In this case, the combination of a different packaging and a strong word mark of its own played in Sinocare's favor.
Frequently asked questions (FAQ)
What is a three-dimensional shape mark?
A shape mark protects the shape of a product or its packaging as an indication of origin. Well-known examples are the Coca-Cola bottle or the Toblerone shape. The prerequisite is that the shape is sufficiently different from what is common in the industry and that consumers spontaneously associate the shape with one company.
When does a simple shape become protectable as a trademark?
When it is demonstrated that the form has acquired distinctiveness through prolonged and intensive use (“familiarising”). This requires hard evidence: sales and marketing figures in the Benelux, testimonials, media coverage and - often - a methodologically indisputable market study. The Lego brand, Perrier's bottle and Crocs' banana-shaped chair are well-known examples in which acquired distinctiveness through familiarising was accepted.
Is the verdict final?
No. The November 5, 2025 judgment has been appealed. The Brussels Court of Appeal will still have to rule. Moreover, in a parallel British procedure the equivalent UK trademark registration was nullified as well, and the Oberster Gerichtshof (AT) refused interim measures to Abbott in October 2024. The convergence of the rulings is a strong signal, but not a guarantee of the Brussels appeal ruling.
Conclusion
The Brussels business court ruling illustrates how stringent the threshold for 3D shape marks remains, even for market leaders with significant market share and substantial marketing investments. A basic geometric shape in a functional sector is almost always perceived as a product shape, not a designation of origin. Those wishing to protect a product shape would do well to opt for a shape that truly deviates from the sector standard already at the design stage AND to apply for a design right in parallel - this offers more efficient protection for the appearance of a product, with significantly lower thresholds than trademark law. The trademark route via acquired distinctiveness through familiarisin remains possible, but requires years of campaigns in which the shape is communicated consistently and without accompanying word marks.
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