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In paragraphs 17 to 21 of the contested decision, the Board of Appeal substantiated its finding as follows: ‘17. The applicant produced samples of its plastic bags used as packaging for its sweets and submitted that the shape reproduced on those bags constitutes a “primary reference point” for the consumer. The applicant takes the view that that use is evidence that the shape is the subject of the advertising as the mark of the product and that it is in that way that it will be perceived by the consumer. The Board of Appeal finds itself compelled to refute that point of view since there is a discrepancy between the applicant's statements and the overall appearance of the sweets on the packet. 18. Whilst it is in fact true that the brown shaped sweets appear on the packaging as the applicant produces them, it is nevertheless necessary to consider the purpose of that representation. It cannot be an abstract assessment. On the contrary, it must consider the probable way in which the average consumer perceives the representation of the sweets as it appears on the packaging. 19. Faced with a packet of the applicant's sweets, the consumer in question notices first the name “Werther's Original” which, written in large print, occupies almost half of the packet and is surrounded by further details such as a small oval sign bearing the name “Storck” and the stylised picture of a small village below which may be read “Traditional Werther's Quality”. The lower half of the packet shows a colour photo representing about 15 sweets piled up and their caption: “The classic candy made with real butter and fresh cream”. 20. According to the applicant's statements that illustration corresponds to the three-dimensional mark in respect of which registration was sought. The Board of Appeal challenges the merits of that position. The way in which the sweets are represented on the packet is not in accordance with the traditional way in which marks are represented on goods. It seems that the purpose of that representation is (instead) to illustrate the contents of the packet. Contrary to the applicant's submissions the packet does not show a shape but a realistic picture of a pile of unwrapped sweets. It should be noted that that representation is not intended to emphasise the characteristics which the applicant considers to confer a distinctive character on the mark (the central depression, the smooth lower surface and the rounded sides). It is for that reason that the Board of Appeal considers that there is a discrepancy between the way in which the sweets are represented on the packet and the submission that that representation is a three-dimensional mark and is perceived as such by the average consumer. The assessment of the Board of Appeal leads it to conclude that it is likely that the consumer will see the picture of the sweets solely as an illustration of the contents of the packet. The illustration of packaging in an attractive way to show the appearance of the product and serving suggestions is a common practice in the food industry, including the confectionery industry. It is dictated more by marketing considerations than by the need to identify products by means of marks. The Board of Appeal accordingly considers that the picture does not fulfil the function of a mark, but serves solely to illustrate the product. The caption accompanying the picture, namely: “The classic candy made with real butter and fresh cream”, further confirms that this will be the probable perception of a reasonably observant sweet-buyer. The caption and picture complement each other: the wording describes the nature of the sweets and the picture shows them. The Board of Appeal concedes that a product may bear several marks at the same time. That does not preclude its finding, based on the appearance of the packets used as packaging for the applicant's sweets, that the representation of the sweets on those packets is not in keeping with the representation of a mark. 21. From the foregoing considerations, it must be concluded that the turnover and the figures relating to the advertising costs in fact prove that “Werther's” sweets are sold on the market, but not that their shape was used as a mark ...’