CELEX: 62007TJ0351
Community trade mark
Application for Community tri-dimensional mark
Shelter for shade
Absolute grounds for refusal
Lack of distinctive character
Article 7(1)(b) of Regulation (EC) No 40/94
Lack of distinctive character acquired by use
Article 7(3) of Regulation No 40/94

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an
application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.
Information relating to the case
Applicant for the Community trade mark:
Somm Srl
Community trade mark sought:
Three-dimensional trade mark described as follows: (‘Three-dimensional whole constituted by a large number of tubular posts
of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having
a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top,
a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines
of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’); for goods
in Classes 6 and 19 – Application No 4837746
Decision of the examiner:
Registration refused
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Somm Srl to pay the costs.