Judgment — ECLI:EU:T:2002:317
Date: 2002-12-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Marks devoid of any distinctive character;Appeals before the Boards of Appeal
Procedure: Action for annulment - unfounded
Origin: Provisional data;United States

Summary of the Judgment 
1. Community trade mark — Appeals procedure — Boards of Appeal — Classification 
as administration of the Office — Right of the parties to a fair 'hearing' — None 
(Council Regulation No 40/94, Arts 60 to 62) 
II - 5255 
SUMMARY — CASE T-63/01 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks devoid of any distinctive char­
acter — Three-dimensional mark — Soap bar shape 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. The Boards of Appe al of the Office for 
Harmonisation in the Internal Market 
(Trade Marks and Designs) cannot be 
classified as 'tribunals'. Since a Board 
of Appeal enjoys, in particular, the 
same powers as the examiner, where it 
exercises them it acts as the adminis­
tration of the Office. An action before 
the Board of Appeal therefore forms 
part of the administrative registration 
procedure, following an 'interlocutory 
revision' by the 'first department' to 
carry out an examination, pursuant to 
Article 60 of Regulation No 40/94 on 
the Community trade mark. 
Consequently, a party may not validly 
rely on a right to a fair 'trial' before the 
Boards of Appeal of the Office. 
(see paras 22-23) 
2. Pursuant to Article 7(1)(b) of Regu­
lation 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 
registration of a three-dimensional 
trade mark in the shape of a rectangu­
lar parallelepiped with rounded edges, 
sought for soaps in Class 3 of the Nice 
Agreement, that shape is devoid of any 
distinctive character since, even though 
the shape requested is not strictly 
identical to a soap bar shape existing 
on the market, it does not have char­
acteristics of its own capable of in­
forming the consumer of the trade 
origin of the goods. 
(see paras 36, 47) 
II - 5256