Judgment — ECLI:EU:T:2007:304
Date: 2007-10-10
Language of the case: English
Court formation: Third 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 - successful
Origin: Denmark

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)) A three-dimensional mark consisting in a vertical, pencil-shaped column, with a long, rectangular panel attached to one side, the point of the ‘pencil’ joining to a flat base, registration of which is applied for in respect of ‘Electric and electronic apparatus and appliances for analogue, digital or optical reception, processing, reproduction, regulation or distribution of sound signals, loudspeakers’ and of ‘Music furniture’, falling respectively within Classes 9 and 20 of the Nice Agreement, is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since this is not one of the customary shapes of the goods in the sector concerned or even a mere variant of those shapes, but a shape having a particular appearance which, having regard also to the aesthetic result of the whole, is such as to retain the attention of the public concerned, namely the average Community consumer displaying a particularly high level of attention when purchasing goods covered by the trade mark application, and to enable that public to distinguish those goods from those of another commercial origin. In that regard, even if the existence of specific or original characteristics does not constitute an essential condition for registration, the fact remains that their presence may, on the other hand, confer the required degree of distinctiveness on a trade mark which would not otherwise have it. (see paras 34, 39, 42-43)