Order;Information — ECLI:EU:T:2021:319
Date: 2021-06-02
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

Order of the General Court (Sixth Chamber) of 2 June 2021 – Birkenstock Sales v EUIPO (Wavy crisscrossing lines on the sole of a shoe) (Case T‑365/20) (Action for annulment – EU trade mark – Application for an EU trade mark consisting in wavy crisscrossing lines on the sole of a shoe – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001) – Action manifestly lacking any foundation in law) 1. Judicial proceedings – Decision taken by way of reasoned order – Conditions – Appeal manifestly inadmissible or manifestly lacking any foundation in law (Rules of Procedure of the General Court, Art. 126) (see para. 18) 2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Concept – Criteria for assessment – Recognition of the distinctive character of the sign not subject to a finding of a specific level of linguistic or artistic creativity or imaginativeness (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 32-35) 3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Assessment of distinctive character – Criteria – Position mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 36, 37) 4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Three-dimensional mark constituted by the shape of the product – Distinctive character – Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 38-40) 5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Mark consisting in wavy crisscrossing lines on the sole of a shoe (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 54, 58, 61) 6. EU trade mark – Procedural provisions – Examination of the facts of the Office's own motion – Registration of a new trade mark – Absolute grounds for refusal – Burden of proof (European Parliament and Council Regulation 2017/1001, Arts 7(1) and 95(1)) (see para. 55) 7. EU trade mark – Definition and acquisition of the EU trade mark – Prior registration of the trade mark in certain Member States – Effect (Council Regulation No 207/2009) (see para. 59) 8. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU – Recourse by the Board of Appeal to implicit reasoning – Whether permissible – Conditions (Art. 296 TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1)) (see paras 66-68) Re: Action brought against the decision of the First Board of Appeal of EUIPO of 19 March 2020 (Case R 1706/2019-1), concerning an application for registration of a sign consisting in wavy crisscrossing lines on the sole of a shoe as an EU trade mark. Operative part 1. The action is dismissed. 2. Birkenstock Sales GmbH shall pay the costs.