Opinion of the Advocate General — ECLI:EU:C:2018:397
Date: 2018-06-06
Language of the case: German
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary — Judgment of the Court (Tenth Chamber), 13 September 2018 1. Appeal — Grounds — Incorrect appraisal of the facts and assessment of the evidence — Inadmissibility — Review by the Court of the appraisal of the facts and assessment of the evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) 3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) 4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark consisting of the two-dimensional representation of a product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) 5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing a pattern of wavy, crisscrossing lines (Council Regulation No 207/2009, Art. 7(1)(b)) 6. Appeal — Grounds — Incorrect appraisal of the facts and assessment of the evidence — Inadmissibility — Review by the Court of the appraisal of the facts and assessment of the evidence — Possible only where the clear sense of the evidence has been distorted — Ground of appeal alleging distortion of the facts — Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) 1. See the text of the decision. (see para. 29) 2. See the text of the decision. (see para. 31) 3. The criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark. In addition, for the purpose of applying those criteria, the average consumer’s perception is not necessarily the same in the case of a three-dimensional mark consisting of the appearance of the product itself as it is in the case of a word or figurative mark consisting of a sign which is unrelated to the appearance of the products it denotes. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish the distinctiveness of such a three-dimensional mark than that of a word or figurative mark. In those circumstances, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the European Union trade mark. (see paras 32, 33) 4. The case-law which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself also applies where the trade mark applied for is a figurative mark consisting of the two-dimensional representation of that product, or where the mark applied for is a sign consisting of a design applied to the surface of a product. In neither of those cases does the mark consist of a sign which is unrelated to the appearance of the products it denotes. That case-law is also applicable where only a part of the product designated is represented by a mark. (see paras 34, 35) 5. See the text of the decision. (see paras 38-44) 6. See the text of the decision. (see para. 80)