Judgment — ECLI:EU:T:2007:179
Date: 2007-06-14
Language of the case: French
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks;General;Descriptive marks;Acquisition of distinctive character through use
Procedure: Action for annulment - unfounded
Origin: France

Summary of the Judgment 1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) 2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Descriptive character of a sign (Council Regulation No 40/94, Art. 7(1)(b) and (c)) 3. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks which are devoid of distinctiveness, descriptive, or common in character – Exception – Distinctive character acquired through use (Council Regulation No 40/94, Art. 7(3)) 1. From the point of view of the average English-speaking consumer, the sign EUROPIG, registration of which has been applied for in respect of ‘Meat; poultry (not live); game; meat extracts; preserved cooked dishes based on meat and/or vegetables; meat, preserved; sausages; sausages; charcuterie; smoked meats; ham; bacon; rillettes (potted pork)’ falling within Class 29 of the Nice Agreement, and ‘meat pies; pies’, falling within Class 30 of that agreement, is descriptive of the products referred to in the Community trade mark application for the purposes of Article 7(1)(c) of Regulation No 40/94. The sign consists exclusively of indications that can be used to describe certain characteristics of the products at issue. That being the case, the relevant public could take the sign to be an indication that it concerns products made from pigs’ meat and originating in Europe. In addition, under the lexical rules of the English language, the neologism ‘europig’ is not unusual but common. Therefore, the mark applied for does not create, in the target public, an impression which is sufficiently far removed from that produced by the simple juxtaposition of the verbal elements of which it is composed, such as to alter the meaning or the scope. (see paras 31, 34-36) 2. A word mark which is descriptive of characteristics of goods or services for the purposes of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark is, on that account, necessarily devoid of any distinctive character in relation to those goods or services within the meaning of Article 7(1)(b) of that regulation. (see para. 47) 3. The acquisition of a distinctive character through use of a mark, for the purposes of Article 7(3) of Regulation No 40/94 on the Community trade mark, requires that at least a significant proportion of the relevant section of the public identifies the products or services concerned as originating from a particular undertaking because of the mark. However, the circumstances in which the condition regarding the acquisition of a distinctive character through use may be regarded as satisfied cannot be shown to exist solely by reference to general, abstract data such as predetermined percentages. In order to assess whether a mark has acquired a distinctive character through use, the factors that must be taken into consideration include: the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant class of persons who, because of the mark, identify goods as originating from a particular undertaking. In this respect, appropriate evidence constitutes, in particular, statements from chambers of commerce and industry or other trade and professional associations. (see paras 55-56)