Judgment — ECLI:EU:T:2018:272
Date: 2018-05-16
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

Judgment of the General Court (Eighth Chamber) of 16 May 2018 – Triggerball v EUIPO (Shape of a ball-like object with edges) (Case T‑387/17) (EU trade mark — Application for a three-dimensional EU trade mark — Shape of a ball-like object with edges — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001)) 1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies — Not included (Council Regulation No 207/2009, Art. 65) (see para. 15) 2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Meaning (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 17) 3. 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 paras 18, 19, 25) 4. 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 — Shape at issue being a (variant) of the typical shapes of the type of goods concerned — Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 20-23) 5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Lack of distinctiveness — Trade mark made up of several elements — Possible for the competent authority to examine each of the elements making up the trade mark — Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 24) 6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark made up of the shape of a ball-like object with edges (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27, 29-33, 36) 7. 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 (Council Regulation No 207/2009, Art. 7(1)) (see para. 35) Re: Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 April 2017 (Case R 376/2017-4), concerning an application for registration of a three-dimensional sign consisting of the shape of a ball-like object with edges as an EU trade mark. Operative part The Court: 1. Dismisses the action; 2. Orders Triggerball GmbH to pay the costs.