The Court of Justice of the EU recently clarified the criteria to take into account when assessing the distinctive character of a position mark applied for in respect of services, in this case passenger transport services (CJEU Östgötatrafiken judgment, Case C-456/19).

Since 2003, the Swedish urban transport company Östgötatrafiken has held several figurative trade marks, which it affixes to its vehicles. In 2016, it applied for three new trade marks, described as “position marks”, consisting of coloured ellipses of different sizes placed in a certain position on buses and trains.