Judgment — ECLI:EU:T:2001:223
Date: 2001-09-19
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Figurative marks;Actions before the Community Courts;Other marks
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive charac­
ter — Figurative marks consisting of the representation of a product — Distinctive 
character — Criteria by reference to which such character assessed 
(Council Regulation No 40/94, Art. 7(1)(b)) 
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SUMMARY — CASE T-30/00 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive charac­
ter — Features of a figurative mark consisting of a representation of the product 
suggesting certain of the product's qualities without being descriptive — Effect on the 
assessment of distinctive character 
(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 — Signs devoid of any distinctive charac­
ter — Figurative mark — Representation, in perspective, of a rectangular tablet with 
rounded corners, comprising two layers, one white and the other red, for washing 
machine and dishwasher products 
(Council Regulation No 40/94, Art. 7(1)(b)) 
4. Community trade mark — Appeals procedure — Appeals before the Community 
judicature — Pleas in law — Misuse of powers — Meaning 
(Council Regulation No 40/94, Art. 63(2)) 
1. Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark does not 
distinguish between different categories 
of trade marks. The criteria for asses­
sing the distinctive character of figura­
tive marks consisting of a representa­
tion of the product itself are therefore 
no different from those applicable to 
other categories of trade marks. 
Nevertheless, when those criteria are 
applied, account must be taken of the 
fact that the perception of the relevant 
section of the public is not necessarily 
the same in relation to a figurative 
mark consisting of a faithful represen­
tation of the product itself as it is in 
relation to a word mark or a figurative 
or three-dimensional mark not faith­
fully representing the product. Whilst 
the public is used to recognising the 
latter marks instantly as signs identify­
ing the product, this is not necessarily 
so where the sign is indistinguishable 
from the appearance of the product 
itself. It follows that an assessment of 
distinctive character cannot result in 
different outcomes for a three-dimen­
sional mark consisting of the design of 
the product itself and for a figurative 
mark consisting of a faithful represen­
tation of the same product. 
(see paras 48-49) 
2. It does not follow from the fact that the 
features of a figurative mark consisting 
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HENKEL v OHIM (DEPICTION OF A DETERGENT PRODUCT) 
of a faithful representation of the 
product itself suggest certain of the 
product's qualities without, however, 
being capable of being considered a 
descriptive indication in terms of Arti­
cle 7(1)(c) of Regulation No 40/94 on 
the Community trade mark that those 
features necessarily confer a distinctive 
character on the mark. Where the 
target sector of the public sees the 
presence of those features as a sugges­
tion that the product has certain qua­
lities, and not as an indication of its 
origin, there is no distinctive character. 
(see para. 54) 
3. According to Article 7(1)(b) of Regula­
tion No 40/94 on the Community 
trade mark, 'trade marks which are 
devoid of any distinctive character' are 
not to be registered. As regards the 
application for registration for washing 
machine or dishwasher products of a 
figurative trade mark which is a repre­
sentation, seen in perspective, of a 
rectangular tablet with slightly roun­
ded corners, comprising two layers, 
one of which is white and the other of 
which is red, the tablet is devoid of any 
distinctive character. 
Given the overall impression created by 
the shape of the tablet represented by 
the image and the arrangement of its 
colours, the mark applied for, which 
reproduces a combination of obvious 
features typical of the product con­
cerned, will not enable consumers, in 
the absence of any additional features, 
to distinguish the products concerned 
from those having a different trade 
origin when they come to select a 
product for purchase. 
(see paras 57, 60, 63) 
4. The concept of misuse of powers has a 
precisely defined scope in Community 
law. It refers to cases in which an 
administrative authority has used its 
powers for a purpose other than that 
for which they were conferred on it. A 
decision of one of the Boards of Appeal 
of the Office for Harmonisation in the 
Internal Market (Trade Marks and 
Designs) may amount to misuse of 
powers only if it appears, on the basis 
of objective, relevant and consistent 
evidence, to have been taken for pur­
poses other than those stated. 
(see para. 70) 
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