Judgment — ECLI:EU:T:2007:263
Date: 2007-09-12
Language of the case: German
Court formation: First 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 - unfounded
Origin: Germany

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 in the shape of a microphone head, characterised by a circular metal ring, a metal frame perpendicular to the metal ring, two wire mesh half heads opposite each other, going from the metal ring to the metal frame, and the flattening of the two half heads converging towards the tip of the head in the form of hyperbolic partial ellipses, registration of which is sought in respect of microphones, in particular studio microphones, condenser microphones, pressure-gradient microphones and their parts falling within Class 9 of the Nice Agreement, is devoid of distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. In so far as, apart from that flattening of the wire mesh, the applicant does not set out any characteristic of the shape forming the mark applied for which, taken alone or in combination with others, would allow the relevant public, composed of a narrow group of people who have a particular knowledge concerning microphones, to distinguish its products from products of other undertakings, it must be concluded that potential differences between the shape forming the mark applied for and other microphones, characterised by the flattening of the wire mesh in the shape of hyperbolic partial ellipses are not such as to attract the attention of the relevant public as an indicator of the origin of the products at issue where it is shown to the requisite legal standard that the relevant public is accustomed to the presence of microphone head grills having that characteristic, and therefore that that kind of microphone is part of the norm or customs of the market. That conclusion cannot be called into question either by the fact that the relevant public is likely to have an increased level of attention in choosing the products at issue, when account is taken of the degree of similarity between the mark applied for and the other shapes present on the market, or by the fact that the shape of the microphone head grill comprising the mark applied for has no function of itself, or by the fact, assuming it to be established, that competing undertakings have been forced to give up producing or marketing products with an analogous shape to that comprising the mark applied for. (see paras 49, 54-57, 61)