Not a syringe

like any

other?

24. April 2026

of

Clemens Pfitzer

Can the simple shape of a disposable syringe be protected as a trademark? Is it enough if the plunger and grip plates are designed slightly differently from the competition? And what are the consequences if a company deliberately refrains from asserting its right to enforce the mark?

What is it all about?

On September 12, 2024, B. Braun Melsungen AG applied for a three-dimensional trademark for medical syringes at the EUIPO. The sign shows a disposable syringe with a transparent, cylindrical syringe body, a continuous green plunger and a characteristically designed handle plate on the syringe body, which consists of two opposing circular segments, each with two struts. At the upper end is the cone, which is not centered but slightly offset. The application covered goods in Class 10, including surgical, medical, dental and veterinary instruments and medical syringes.

As early as October 2024, the examiner objected to the application for lack of distinctiveness. B. Braun maintained the application, but expressly declared in June 2025 that it would not assert a claim to distinctiveness acquired through use (so-called acquired distinctiveness). By decision of October 16, 2025, the examiner rejected the application in its entirety. B. Braun filed an appeal in December 2025.

The ground for refusal due to lack of distinctiveness

The appeal was dismissed by the Board of Appeal of the EUIPO with Decision of 10.04.2026 – Ref. R 2378/2025-5 rejected.

The key question was whether the sign applied for had the necessary distinctive character. In this context, distinctiveness means that a sign must be capable of distinguishing the goods of one company from those of other companies and thus function as an indication of commercial origin.

Three-dimensional trademarks, which coincide with the appearance of the goods themselves, are subject to a stricter standard of examination than word or figurative marks. According to the established case law of the European Court of Justice, they are only eligible for protection if they deviate significantly from the norm or customary practice in the industry. The closer the shape applied for comes to the usual product design, the more likely it is to lack the necessary distinctive character.

Relevant publics and their level of attention

The Board of Appeal categorized the relevant public as a specialist medical public, as syringes are mainly used in clinical and practical medical settings. Nevertheless, the Board made it clear that a higher degree of attention alone does not justify lower requirements for distinctiveness. On the contrary: Especially those who handle syringes on a daily basis and are familiar with the industry standard have even less reason to see an indication of origin in a common syringe shape.

As disposable plastic syringes are used en masse, used quickly and then disposed of easily, the level of attention paid to these everyday products is not considered to be above average, even by the specialist public.

The evaluation of the individual design features

B. Braun argued that the overall design of the syringe was sufficiently distinctive in a standardized, functionally very limited product environment to serve as an indication of origin. The Board of Appeal did not follow this argument.

The transparent cylindrical syringe body, the scaling, the cone as a cannula connection and the grip plates are all standard functional elements in the opinion of the chamber. The green color of the plunger is also widely used in the medical and surgical field and also fulfills the practical function of a color contrast to the liquid in the syringe body. The corrugation of the plunger grip plate is intended to prevent slipping and is perceived as a technical feature, not as a commercial designation typical of the brand.

With regard to the special design of the syringe barrel grip plate consisting of two circular segments with struts and the offset arrangement of the cone, the Board admitted that these elements do not necessarily have an obvious function. Nevertheless, this was not sufficient to justify a significant deviation from the industry standard. At the time of the purchase decision, the specialist consumer would classify such details, which appear to have no functional relevance, as purely decorative and not as an indication of origin.

Overall impression and market comparison

B. Braun had analyzed the competing products used by the examiner for comparison in detail and identified numerous differences in plunger design, color, cone placement and grip plate shape. However, the Board of Appeal did not regard these differences as evidence of the uniqueness of the shape applied for, but on the contrary as an indication that syringes are available on the market in a large number of similar variants. The shape applied for was one of these variants, but not one that differed significantly from what was customary in the industry.

The Board also recalled that novelty and originality are not decisive criteria for distinctiveness. A shape can be new and still not be protectable if it is not perceived as an indication of commercial origin.

Practical information for trademark applicants

3D trademarks for product shapes are subject to a strict examination standard. In order to be perceived as an indication of origin, the shape applied for must deviate significantly from what is customary in the industry.

In highly standardized product areas such as medical technology, this distance is particularly difficult to achieve, as functional constraints severely limit the scope for design. What appears to be a special feature compared to competitor products is often perceived by the public as merely a variant.

Conclusion

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