Judgment — ECLI:EU:T:2009:137
Date: 2009-05-05
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: Three-dimensional marks
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) The three‑dimensional sign representing the shape of an arrangement of sausages for which registration is sought in respect of ‘charcuterie’ in Class 29 under the Nice Agreement is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. The goods at issue, namely charcuterie (Wurstwaren), are sold not only by butchers, but also in supermarkets, in areas specifically intended for that purpose and in refrigerated goods departments. They are, therefore, everyday consumer goods intended for the average consumer in the European Union. As regards the shape applied for, that is to say, an arrangement of a number of sausages, that arrangement differs from the most widespread classic shape of the goods at issue, namely that of a sausage. It has not been demonstrated how the shape applied for differs significantly from the usual shape in which sausages are presented in trade. It follows therefrom that, as the goods at issue – charcuterie – are everyday consumer goods, the average consumer will not perceive the shape applied for as an indication of the commercial origin of those goods. (see paras 25-26, 30-31)