When design goes beyond function: A recent case shows sensory experience details matter in motion marks

The General Court of the European Union delivered a judgment in Case T-9/25, KCT v EUIPO, on January 14, 2026, which is useful to demonstrate the level of 'distinctiveness' required to overcome objections citing Article 7(1)(b) of the European Union Trade Mark Regulation (EUTMR). 

The article states that trade marks which are devoid of any distinctive character shall not be registered.

The decision is also a clear example of a trade mark application that fell foul of Article 7(1)(e)(ii) EUTMR, which prevents the registration of signs that consist exclusively of the shape of goods, or another characteristic, which is necessary to obtain a technical result.

The application and refusal #

The case centred on an application by a German company (KCT) to register the "movement of a folding window," showing a window sash moving outward and upward from its frame.

The EUIPO rejected the application, finding it lacked distinctive character and consisted exclusively of features necessary to achieve a technical result: namely, allowing light and air into an enclosed space.

Assessment of motion marks and key features #

Even though it didn't change the overall outcome in this case, the General Court's handling of the black spacers and the colour changes provides a very useful and detailed commentary on how motion marks should be considered. The Court found that the Board of Appeal oversimplified the mark by saying the spacers were "not important" and that only the "movement as a whole" mattered. The General Court corrected this, ruling that the spacers were an essential characteristic, as argued by the Applicant.

The Court noted that "Article 7(1)(e)(ii) of Regulation 2017/1001 cannot apply where the application for registration as a trademark relates to a product feature in which a non-functional element, such as an ornamental or fanciful feature, plays an important role. In such a case, competing undertakings have easy access to substitute features with equivalent functionality, so there is no risk of impairing the availability of the technical solution."

This confirms that when dealing with motion marks, the details do matter. The specific components involved in that motion can be examined in detail, and it is advisable to ensure a level of non-functional elements is clearly demonstrated (elements that serve no mechanical purpose, but rather add to the sensory experience).

Colour change and distinctiveness #

A second nugget from the case was the attention paid by the Court to arguments submitted around a 'colour change' in the window as the closure mechanism is operated.  The Court found that if a visual change is just the result of lighting or physics (three-dimensionality), it’s not creative or distinctive.

It is useful to contrast 'real life facts' with 'ornamental' colour changes, which may suffice to act as a trade mark (see the example of TIMEQUBE (EUTM 17911214), where a cube arbitrarily changes colour from green to red).

Key implications for motion marks #

Overall, the decision reinforces the high threshold for registering motion marks, particularly where the movement reflects a product’s technical function. However, it also highlights that non-functional, sensory or decorative elements can play a decisive role.

Careful attention should therefore be paid to how such elements are presented in an application, as even small details may influence whether a motion mark is considered distinctive and registrable.