In a recent decision over Dior cosmetics packaging, one line from the European Union Intellectual Property Office’s (“EUIPO”) Fourth Board of Appeal is particularly interesting: the Board said Dior had not shown that the shape of cosmetic products plays a greater role in purchasing decisions today because of social media. The LVMH-owned brand had argued that in a visually driven, social-media-led beauty market, the shape and aesthetic of its packaging now function as a primary brand-signaling tool that consumers recognize and respond to even before experiencing the product itself.
The Board’s rebuff in its October 30 decision signals a broader EUIPO trend: marketing reality (that Instagram-able packaging drives consumer attention) does not automatically translate into trademark reality (packaging functions as an indicator of source).
Packaging Distinctiveness Meets the Social Media Playbook
Dior’s bid to parlay claims that consumers are often attracted to “the artistic appearance of the bottle or packaging” before even testing a cosmetics product into a finding of inherent distinctiveness and the Board’s refusal to treat aesthetic appeal as proof of source indication provides some interesting takeaways for brands …
> Demonstrating Consumer Perception: Across the beauty and broader cosmetics industry, brands increasingly position packaging not merely as decorative but as a core brand-signaling device – especially in the digital economy, where products are encountered first and most frequently on visual platforms. Dior leaned into this logic, arguing that the Dior Addict packaging has become part of the brand’s identity precisely because it appears (and is intentionally positioned) in influencer content, editorial beauty imagery, and user-generated “shelfie” displays.
Yet, for the EUIPO, this argument carries little weight without evidence, as the Office continues to require proof that consumers actually identify the product’s origin from the shape, alone – without help from word marks, logos, or brand names. The benchmark is not whether packaging is aesthetically distinctive or widely circulated online, but whether consumers perceive it as a source identifier.
In practice, this demands consumer surveys that isolate the shape in neutral conditions, data showing recognition across a substantial portion of the European Union, and market analysis demonstrating that recognition is attributable to the shape itself rather than to accompanying branding or marketing exposure. The message is clear: if TikTok has changed consumer perception, the applicant must measure that shift – not simply describe it.
Across the beauty and broader cosmetics industry, brands increasingly argue that social media elevates packaging from “decorative” to “source-indicating.” Consistent with EU case-law and the Board’s reasoning, the Office requires empirical evidence, not rhetoric. In Dior’s case, the company’s claims about the bottle’s “iconic” status and the primacy of visual design amount to marketing assertions unless supported by evidence that isolates the shape, itself (i.e., without logos, colors, or other branding) and measures whether consumers identify the shape with Dior – not merely that they like it or recognize it.
> Packaging in a High-Variety Market: The decision also reinforces how the EUIPO applies the “norms and customs” doctrine in sectors where design variation is already high. Cosmetics and perfumery are spaces where bottle shapes, finishes, caps, and decorative flourishes are both expected and competitively performed – an aesthetic ecosystem that, paradoxically, makes it harder for any single configuration to stand out as a source indicator.
In this environment, difference is normal, so only very strong difference can signal origin. Dior’s design elements – vertical ridges, mirrored sphere cap, concentric base – were treated by the EUIPO as aesthetic tweaks within an existing design vocabulary, not as features that create a recognizable departure from category norms. The Board reaffirmed that the existence of many designs does not dilute the standard for distinctiveness; rather, it broadens the scope of what consumers view as commonplace. In legal effect, the more creatively diverse a sector is, the higher the bar for proving a shape is distinctive.
> Platform-Driven Enforcement ≠ Registrability: Dior’s argument that trademark protection was needed to fight counterfeits engages a real, operationally significant truth: shape marks are powerful enforcement tools, especially on global e-commerce platforms where counterfeiters often remove or obscure logos. However, the Board reiterated a strict doctrinal boundary: enforcement purpose has no bearing on inherent distinctiveness.
A mark is not registrable because it would be useful for anti-counterfeiting; it is registrable only if it already functions as a signifier of commercial origin in the eyes of consumers. This divide highlights a persistent structural tension in luxury brand protection: the legal framework was not built for brand enforcement in the era of TikTok virality, Amazon storefronts, and parallel-market liquidity. Brands now need trademarks to police the marketplace effectively – but trademarks remain contingent on how consumers understand the sign, not how the brand wishes the sign to function.
THE BOTTOM LINE: Dior’s setback highlights a broader point: visibility, aesthetic distinctiveness, and cultural presence do not, on their own, turn a packaging shape into an indicator of source. Even in beauty, consumers do not automatically treat shape as a trademark, and the EUIPO is not prepared to assume that social media has changed that. Shape marks in luxury will continue to be won not by stylistic impact or virality, but by data proving that, across a substantial part of the EU, the public sees a given shape and thinks of a single brand – even when the logo is gone.
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