On 10 November 2025, the EUIPO refused the registration of an EU position mark filed for footwear (class 25), consisting of a configuration of small decorative metal rivets placed on the front, back and sides of the shoe.
This decision once again illustrates the strict approach taken by the EUIPO when assessing the distinctiveness of signs incorporated into the appearance of the product itself.
The refusal is based on Article 7(1)(b) EUTMR (lack of distinctive character). As no observations were submitted by the applicant, the Office confirmed the initial objection.
The EUIPO recalls that distinctiveness must be assessed from the perspective of the relevant public, here the average consumer of footwear throughout the European Union, and in light of the nature of the sign claimed, a position mark applied directly to the product .
According to settled case law (notably Rote Schnürsenkelenden, T-208/12), a sign that forms part of the product’s appearance may only function as a trade mark if it significantly departs from the norms or customs of the sector.
In the present case, the Office finds that the small decorative metal rivets, sometimes also used as functional reinforcements, are commonly found in footwear design, especially women’s footwear. Consumers are accustomed to such embellishments and will perceive them as purely aesthetic or technical choices, not as indicators of commercial origin.
To substantiate this conclusion, the EUIPO refers to several examples available on the market (online footwear models featuring similar embellishments), demonstrating that the configuration at issue does not differ meaningfully from existing sectoral practices.
Thus, the sign is viewed as a commonplace decorative motif, devoid of inherent distinctiveness.
The applicant failed to respond to the EUIPO’s notice of provisional refusal dated 27 August 2025.
Under Article 94 EUTMR, the Office must decide on the basis of the material on file, meaning that the refusal under Article 7(1)(b) EUTMR was confirmed in full .
This absence of response prevents the applicant from:
The refusal logically stands.
This decision highlights three strategic lessons for companies seeking to protect design elements placed directly on a product:
Position marks are only registrable when the configuration is truly atypical, distinctive, or used in an unexpected location.
Common embellishments such as metal rivets, studs, perforations, eyelets or stitching patterns will rarely be inherently distinctive.
Where inherent distinctiveness is lacking, applicants must be prepared to establish distinctive character acquired through use, typically through:
Without such evidence, registrability is highly unlikely.
Companies in the fashion and luxury sector should combine position marks with:
in order to secure their signature aesthetic elements when trade mark protection alone may be insufficient.
Conclusion
The EUIPO’s decision of 10 November 2025 reaffirms its strict policy: a configuration of small decorative metal rivets — even if placed in a consistent manner — does not enable consumers to identify the commercial origin of the goods.
This case underscores the need for companies to prepare a strong evidentiary record and to adopt a comprehensive IP approach when seeking to protect visual details applied to their products.
