Judgment — ECLI:EU:C:2005:422
Date: 2005-06-30
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Appeals;General
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Belgium

Summary of the Judgment 1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Lack of distinctive character of the sign — Mark consisting of several components — Open to the competent authority to examine each of the components of which the mark is composed — Need to take into account the overall perception of their combination by the relevant public (Council Regulation No 40/94, Art. 7(1)( b)) 2. Appeals — Pleas in law— Mere repetition of the pleas in law and arguments submitted to the Court of First Instance — Failure to identify the error of law relied on — Inadmissible (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court, Art. 112(1)(c)) 1. In order to assess whether or not a Community trade mark has any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94, the overall impression given by it must be considered. That does not mean, however, that the competent authority, responsible for ascertaining whether the trade mark for which registration is sought is capable of being perceived by the public as an indication of origin, may not first examine each of the individual features of the get-up of that mark in turn. It may be useful, in the course of the competent authority’s overall assessment, to examine each of the components of which the trade mark concerned is composed. In this context, the overall perception of the mark by the average consumer should nevertheless be relied upon, and not the presumption that features individually devoid of distinctive character cannot, on being combined, display distinctive character, thereby refusing to give any relevance to aspects such as the existence of an element of imaginativeness, which must be taken into account in such an analysis. (see paras 22-23, 26-27) 2. It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where an appeal merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails to satisfy that requirement. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice. (see paras 42, 49-50)