Judgment — ECLI:EU:T:2001:221
Date: 2001-09-19
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Signs of which a trade mark may consist;Actions before the Community Courts;Three-dimensional marks
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Signs capable of constituting a trade mark — Shape — Colour — Condi­
tion — Distinctive character 
(Council Regulation No 40/94, Arts 4 and 7(1)(b)) 
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SUMMARY — CASE T-337/99 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive charac­
ter — Three-dimensional mark consisting of the shape and colour of the product — 
Distinctive character — Criteria by reference to which such character assessed 
(Council Regulation No 40/94, Art. 7(1)(b)) 
3. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive charac­
ter — Features of a three-dimensional mark suggesting certain of the product's 
qualities without being descriptive — Effect on the assessment of distinctive character 
(Council Regulation No 40/94, Art. 7(1)(b) and (c)) 
4. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive charac­
ter — Three-dimensional mark — Round tablet comprising two layers, one white the 
other red, for washing machine and dishwasher products 
(Council Regulation No 40/94, Art. 7(1)(b)) 
5. Community trade mark — Appeals procedure — Appeals before the Community 
judicature — Pleas in law — Misuse of powers — Meaning 
(Council Regulation No 40/94, Art. 63(2)) 
1. It is clear from Article 4 of Regulation 
No 40/94 on the Community trade 
mark that both a product's shape and 
its colours fall among the signs which 
may constitute a Community trade 
mark. However, the fact that a cate­
gory of signs is, in general, capable of 
constituting a trade mark does not 
mean that signs belonging to that 
category necessarily have distinctive 
character for the purposes of Arti­
cle 7(1)(b) of Regulation No 40/94 in 
relation to a specific product or service. 
(see para. 42) 
2. Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark does not 
distinguish between different categories 
of trade marks. The criteria for asses­
sing the distinctive character of three-
dimensional trade marks consisting of 
the shape of the product itself are 
therefore no different from those 
applicable to other categories of trade 
marks. 
Nevertheless, when those criteria are 
applied, account must be taken of the 
fact that the perception of the relevant 
section of the public is not necessarily 
the same in relation to a three-dimen-
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HENKEL v OHIM (ROUND TABLET, RED AND WHITE) 
sional mark consisting of the shape and 
the colours of the product itself as it is 
in relation to a word mark, a figurative 
mark or a three-dimensional mark not 
consisting of the shape of the product. 
Whilst the public is used to recognising 
the latter marks instantly as signs 
identifying the product, this is not 
necessarily so where the sign is indis­
tinguishable from the appearance of 
the product itself. 
(see paras 45-46) 
3. It does not follow from the fact that the 
features of a three-dimensional mark 
suggest certain of the product's quali­
ties without, however, being capable of 
being considered a descriptive indica­
tion in terms of Article 7(1)(c) of 
Regulation No 40/94 on the Commu­
nity trade mark that those features 
necessarily confer a distinctive charac­
ter on the mark. Where the target 
sector of the public sees the presence 
of those features as a suggestion that 
the product has certain qualities, and 
not as an indication of its origin, there 
is no distinctive character. 
(see para. 51) 
4. According to Article 7(1)(b) of Regula­
tion No 40/94 on the Community 
trade mark, 'trade marks which are 
devoid of any distinctive character' are 
not to be registered. As regards the 
application for registration for washing 
machine or dishwasher products of a 
three-dimensional trade mark in the 
form of a round tablet comprising two 
layers, one of which is white and the 
other of which is red, the tablet is 
devoid of any distinctive character. 
Given the overall impression created by 
the shape of the tablet and the arrange­
ment of its colours, the mark applied 
for, which consists of a combination of 
obvious features typical of the product 
concerned, will not enable consumers 
to distinguish the products concerned 
from those having a different trade 
origin when they come to select a 
product for purchase. 
(see paras 54, 56, 59) 
5. The concept of misuse of powers has a 
precisely defined scope in Community 
law. It refers to cases where an admin­
istrative authority has used its powers 
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SUMMARY — CASE T-337/99 
for a purpose other than that for which 
they were conferred on it. A decision of 
one of the Boards of Appeal of the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and Designs) 
may amount to misuse of powers only 
if it appears, on the basis of objective, 
relevant and consistent evidence, to 
have been taken for purposes other 
than those stated. 
(see para. 66) 
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