Judgment — ECLI:EU:T:2003:123
Date: 2003-04-30
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;Marks devoid of any distinctive character
Procedure: Action for annulment - unfounded
Origin: Switzerland;Provisional data

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusing registration — Marks devoid of distinctive 
character — Assessment of the distinctiveness of a mark — Whether factors which 
are not the subject of the registration may be taken into account — Not included 
(Council Regulation No 40/94, Art. 7(1)(b» 
II - 1897 
SUMMARY — JOINED CASES T-324/01 AND T-110/02 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks devoid of distinctive character — 
Three-dimensional mark — Shape of a brown cigar and shape of a gold ingot 
(Council Regulation No 40/94, Art. 7(1) (b)) 
1. Factors which will not be the subject of 
the registration, such as the price of the 
product concerned or a particular spa­
tial positioning of the product the 
shape of which constitutes the mark, 
cannot be taken into consideration in 
assessing a trade mark's distinctiveness 
within the meaning of Article 7(1)(b) of 
Regulation No 40/94 on the Commu­
nity trade mark, unless that product is 
ordinarily presented with that pos­
itioning. 
For the purposes of assessing the regis­
trability of a sign in respect of a 
particular category of goods and/or 
services, whether the applicant for the 
trade mark in question is contemplat­
ing or is actually using a particular 
marketing concept is immaterial 
because the existence of a marketing 
concept is a factor that is extrinsic to 
the right conferred by the Community 
trade mark and because, since a mar­
keting concept is purely a matter of 
choice for the undertaking concerned, 
it is liable to be altered after the 
Community trade mark has been regis­
tered and cannot therefore have any 
bearing on the assessment of the mark's 
registrability. 
(see paras 36, 40) 
2. The three-dimensional marks in the 
shape of a brown cigar and of a gold 
ingot for which registration is sought in 
respect of 'chocolate, chocolate goods; 
pastry and confectionery' (Class 30 of 
the Nice Agreement); 'chocolate, choc­
olate goods' (Class 30); and 'cardboard 
packaging in the form of a gold ingot 
for chocolate and chocolate goods' 
(Class 16) are devoid of distinctive 
character within the meaning of 
Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark because 
they do not differ substantially from 
certain basic shapes, commonly used in 
the trade, of the products concerned 
but are, rather, a variant of those 
shapes, which is concrete evidence 
justifying the conclusion that they are 
capable of being commonly used in 
trade for the presentation of the prod­
ucts covered by the applications and 
because those marks, as perceived by 
II - 1898 
AXIONS AND BELCE v OHIM (BROWN CIGAR SHAPE AND GOLD INGOT SHAPE) 
an average consumer who is reasonably 
well informed and reasonably observ­
ant and circumspect, are therefore 
incapable of differentiating the prod­
ucts concerned or of distinguishing 
them from those of a different trade 
origin. 
(sec paras 44-45) 
II - 1899