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Introduction
The evolution of trademark law in Europe has enabled the emergence of new forms of distinctive signs, adapted to companies’ visual strategies. Among these, the position mark stands out as a still relatively uncommon category, though one whose use and recognition are steadily increasing before European offices and courts.
This type of trademark, which lies at the intersection of design and traditional trademarks, protects the specific way in which a sign is affixed to a product. The European Union has regulated this concept through the European Union Trademark Regulation (EUTMR) and the EUIPO guidelines, in order to define its limits and guarantee legal certainty for economic operators.
Definition and characteristics of position marks
According to the EUIPO, a position mark is defined as a sign “consisting of the specific manner in which the mark is placed or affixed to the product.”
The graphic representation must clearly identify the position, size, and proportion of the sign in relation to the product concerned.
To be admissible, the graphic representation of the trademark application must:
- Be precise, intelligible, and objective.
- Include, where applicable, dotted lines to distinguish unprotected elements.
- Avoid any vague descriptions suggesting that the position of the sign could vary depending on the products.
Thus, protection covers not only the sign itself, but also the combination of that sign and its particular positioning on the product.
Conditions of validity before the EUIPO
To be registered, a position mark must meet the conditions of validity set out in Article 7(1)(a) and (b) of the EUTMR, namely:
- Be clearly defined and identifiable.
- Have distinctive character, enable consumers to identify the commercial origin of the goods.
The EUIPO ensures that the representation filed allows any economic operator to understand the scope of protection without ambiguity. A sign that is purely decorative, generic, or inseparable from the usual appearance of the product may be refused. Case law thus reminds us that a position mark must not be confused with a simple design or aesthetic element.
The Airwair International Limited case
In a decision handed down on August 12, 2025, the EUIPO Cancellation Division ruled in the case Mtng Europe Experience, S.L.U. v. Airwair International Limited, regarding the famous yellow heel loop on Dr. Martens shoes.
Mtng Europe Experience, challenged the validity of the position mark registered by Airwair, described as a black and yellow buckle affixed to the back of the shoe, accompanied by contrasting yellow stitching.
The EUIPO reiterated that the representation of a trademark must be clear, precise, and durable, allowing for unambiguous identification of the protection conferred.
In this case, the Cancellation Division ruled that the trademark met these criteria and rejected the request for cancellation, considering that the visual element and its position gave the product a strong distinctive character.
This decision confirms the possibility of protecting an iconic visual positioning when it serves as an indication of commercial origin.
Practical issues for rights holders
For businesses, position marks offer valuable protection against the imitation of distinctive visual elements. They extend the protection afforded by the design or shape of the product by specifically targeting the location of a distinctive sign.
However, their success depends on a rigorous filing strategy:
- Describe the position of the sign precisely;
- Avoid any confusion between aesthetic function and function of origin;
- Ideally, secure the trademark application with proof of use and public recognition.
Trademark owners must therefore work hand in hand with specialized IP counsels to secure the scope of their applications and avoid any cancellation based on lack of clarity or distinctiveness.
Conclusion
Position marks represent a major evolution in trademark law, adapted to contemporary visual and marketing realities.
The Airwair case illustrates the importance of rigorous and consistent representation to ensure the validity of such a registration.
By combining visual innovation and legal rigor, position marks enable companies to protect not only their identity, but also the way they present it to the public.
Dreyfus & Associés assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.
Nathalie Dreyfus with the support of the entire Dreyfus team
Q&A
1. What is a position mark?
A position mark protects the specific way in which a sign is affixed to a product, rather than the sign itself. It is therefore distinct from figurative or three-dimensional marks.
2. What are the criteria for the validity of a position mark ?
It must be clear, precise, and sufficiently distinctive to enable consumers to identify the origin of the product.
3. What is the difference between a position mark and a design ?
A design protects the aesthetic appearance of a product, while a position mark protects the commercial origin associated with a particular visual positioning.
4. Can position mark protection and design protection be combined ?
Yes, both types of protection can coexist if they serve different purposes: one aesthetic, the other distinctive.
5. Why register a position mark ?
To prevent imitations and strengthen the protection of iconic visual elements that contribute to a brand’s identity, such as a seam, a stripe, or a distinctive location.