Judgment — ECLI:EU:T:2003:53
Date: 2003-03-05
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;Actions before the Community Courts
Procedure: Action for annulment - unfounded
Origin: Netherlands

Summary of the Judgment 
1. Community trade mark — Appeals procedure — Appeals before the Community 
Courts — Application made at the hearing to restrict the list of goods and services 
contained in the trade-mark application refused — Interpreted as partial with-
II - 383 
SUMMARY — CASE T-194/01 
dratval — Alteration of the factual or legal context of the dispute heard by the Board 
of Appeal — Excluded 
(Rules of Procedure of the Court of First Instance, Art. 135(4); Council Regulation 
No 40/94, Art. 44; Commission Regulation No 2868/95, Art. 1, Rule 13) 
2. Community trade mark — Definition and acquisition of a Community trade mark — 
Absolute grounds for refusal — Marks devoid of distinctive character — Three-
dimensional mark — Ovoid tablet 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. When, in an action brought against a 
decision of a Board of Appeal of the 
Office for Harmonisation in the Inter­
nal Market (Trade Marks and Designs) 
upholding refusal of an application for 
a Community trade mark, an appli­
cation to restrict the list of goods or 
services in the trade-mark application 
is made orally at the hearing, it cannot 
be considered to be an application for 
amendment within the meaning of 
Article 44 of Regulation No 40/94 on 
the Community trade mark or Rule 13 
of Regulation No 2868/95 implement­
ing Regulation No 40/94, since it does 
not comply with the specific detailed 
rules laid down by those provisions. 
However, such an application may be 
interpreted as meaning that the appli­
cant has withdrawn its action in so far 
as it sought annulment of the contested 
decision in respect of products or 
services other than those retained in 
the application for limitation. 
Although such partial withdrawal is 
not, as such, contrary to the prohib­
ition in Article 135(4) of the Rules of 
Procedure on changing, before the 
Court of First Instance, the subject-
matter of the proceedings before the 
Board of Appeal, it none the less does 
not affect the principle that the Court's 
task is to review the legality of the 
Board of Appeal's decision. The review 
must be carried out in the light of the 
factual and legal context of the dispute 
as it was brought before the Board of 
Appeal. It follows that a party cannot, 
by withdrawing its claims in part, alter 
the matters of fact and law on the basis 
of which the legality of the Board of 
Appeal's decision is examined. 
(see paras 13-16) 
2. Under Article 7(1)(b) of Regulation 
No 40/94 on the Community trade 
mark 'trade marks which are devoid of 
any distinctive character' are not to be 
registered. As regards, in that connec­
tion, the registration claimed for dish-
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UNILEVER v OHIM (OVOID TABLETS) 
washer preparations of a three-dimen­
sional mark presented in the form of a 
speckled ovoid tablet, colour not being 
claimed, the mark is not distinctive, 
since it is closely related to certain basic 
commonly-used shapes on which it is a 
variation and since the speckles on the 
tablet are not such either as to confer 
distinctive character on the mark 
applied for. As a result, with respect 
to the overall impression produced by 
the appearance of the tablet concerned, 
the mark applied for is not such as to 
enable the relevant public, on the 
occasion of a subsequent acquisition, 
to recognise it and make a further 
purchase, if the experience proves to be 
positive, or to avoid a further purchase, 
if it proves to be negative. 
(see paras 54, 56-59) 
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