Judgment — ECLI:EU:T:2019:455
Date: 2019-06-28
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

Judgment of the General Court (Second Chamber) of 28 June 2019 – Gibson Brands v EUIPO — Wilfer (Shape of a guitar body) (Case T‑340/18) (EU trade mark — Invalidity proceedings — EU three-dimensional mark — Shape of a guitar body — Absolute ground for refusal — Distinctive character — Article 52(1)(a) of Regulation (EC) No 207/2009 (now Article 59(2)(a) of Regulation (EU) 2017/1001) — Distinctive character acquired through use — Article 52(2) of Regulation No 207/2009 (now Article 59(2) of Regulation 2017/1001)) 1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Meaning — Criteria for assessment (Council Regulation No207/2009, Art. 7(1)(b)) (see paras 27, 28) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 29) 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)) (see paras 30-32) 4. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(b) of Regulation No 207/2009 — Three-dimensional mark — Shape of a guitar body (Council Regulation No 207/2009, Arts 7(1)(b) and 52(1)(a)) (see paras 39-41, 49, 50, 52) 5. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(b) of Regulation No 207/2009 — Exception — Distinctive character acquired through use — Criteria for assessment (Council Regulation No 207/2009, Arts 7(3) and 52(2)) (see paras 62, 63, 75) Re: Action brought against the decision of the Second Board of Appeal of EUIPO of 8 March 2018 (Case R 415/2017-2), relating to invalidity proceedings between Mr Wilfer and Gibson Brands. Operative part The Court: 1. Dismisses the action; 2. Orders Gibson Brands, Inc. to pay the costs.