Judgment — ECLI:EU:C:2015:303
Date: 2015-05-07
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Summary — Judgment of the Court (Sixth Chamber), 7 May 2015 1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product — Distinctive character — Criteria for assessment — Shape at issue which is a ‘variant’ of the common shapes of the type of goods concerned — Fact which is not sufficient to establish that the mark has distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) 2. Appeal — Grounds of appeal — Incorrect appraisal of the facts and assessment of the evidence — Inadmissibility — Review by the Court of the appraisal of the facts and the assessment of the evidence — Possible only where the facts or evidence have been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal —Lack of distinctive character of the sign — Trade mark consisting of several elements — Possible for the competent authority to examine each of the components of the trade mark — Need to take account of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) 1. The criteria for assessing the distinctive character, for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark, of three-dimensional trade marks consisting of the shape of the product itself are no different from those applicable to other categories of trade mark. However, for the purpose of applying those criteria, the perception of the average consumer is not necessarily the same in relation to a three-dimensional mark consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent of the appearance of the products it designates. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish distinctive character in relation to such a three-dimensional mark than in relation to a word or figurative mark. In those circumstances, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character. Only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of that provision. It follows that, where a three-dimensional mark is constituted by the shape of the product for which registration is sought, the mere fact that that shape is a ‘variant’ of a common shape of that type of product is not sufficient to establish that the mark is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009. It must always be determined whether such a mark permits the average consumer of that product, who is reasonably well informed and reasonably observant and circumspect, to distinguish the product concerned from those of other undertakings without conducting an analytical examination and without paying particular attention. (see paras 90-92) 2. See the text of the decision. (see para. 97) 3. See the text of the decision. (see paras 105, 106, 110, 124, 128)