Judgment — ECLI:EU:T:2002:244
Date: 2002-10-09
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks;General
Procedure: Action for annulment - successful

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks which consist exclusively of signs 
or indications which may serve to designate the characteristics of the goods — 
'UltraPlus' 
(Council Regulation No 40/94, Art. 7(1)(c)) 
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SUMMARY — CASE T-360/00 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Lack of descriptive character of a sign — 
Fact not necessarily implying that the sign is distinctive 
(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 devoid of any distinctive char­
acter — 'UltraPlus' 
(Council Regulation No 40/94, Art. 7(1) (b)) 
1. Article 7( 1 ) (c) of Regulation No 40/94 
on the Community trade mark pro­
vides that 'trade marks which consist 
exclusively of signs or indications 
which may serve, in trade, to designate 
the kind, quality, quantity, intended 
purpose, value, geographical origin or 
the time of production of the goods or 
of rendering of the service, or other 
characteristics of the goods or service' 
are not to be registered. As regards the 
registration of 'UltraPlus' sought in 
respect of plastic ovenware for use in 
microwave, convection and conven­
tional ovens, it has not been shown 
that that sign may serve to designate 
those goods directly, since the word 
'ultra' does not designate a quality, 
quantity or characteristic of the oven-
ware which the consumer is able to 
understand directly, that word, as such, 
being capable only of reinforcing the 
designation of a quality or character­
istic by another word, and since the 
word 'plus' does not in itself designate 
a quality or characteristic of the plastic 
ovenware concerned which the con­
sumer is able to understand directly 
and which could be reinforced by the 
word 'ultra', with the result that the 
relevant public would not immediately 
and without further reflection make a 
definite and direct association between 
plastic ovenware and 'UltraPlus'. When 
an undertaking extols, indirectly and in 
an abstract manner, the excellence of 
its products by way of a sign such as 
'UltraPlus', yet without directly and 
immediately informing the consumer of 
one of the qualities or specific char­
acteristics of the ovenware, it is a case 
of evocation and not designation for 
the purposes of the abovementioned 
provision. 
(see paras 25-27, 29) 
2. The fact that a sign is not descriptive 
within the meaning of Article 7(1)(c) of 
Regulation No 40/94 on the Commu­
nity trade mark does not automatically 
mean that it is distinctive within the 
meaning of Article 7(1 )(b). Distinctive 
character may also be lacking if the 
relevant public cannot perceive in that 
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DART INDUSTRIES v OHIM (ULTRAPLUS) 
sign an indication of the commercial 
origin of the goods. 
(see para. 30) 
3. 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 the regis­
tration of 'UltraPlus' sought in respect 
of plastic ovenware for use in micro­
wave, convection and conventional 
ovens, it has not been shown that there 
is nothing unusual in the choice of the 
words forming that term and that it is, 
taken as a whole, commonly used in 
relation to ovenware, with the result 
that that sign may be distinctive in 
respect of those goods. 
Such a sign can be easily and instantly 
memorised by the relevant public and 
can enable it to repeat a positive 
experience of purchasing ovenware 
inasmuch as the sign is not already 
commonly used, as such, for that type 
of goods, which usage would prevent 
the consumer from distinguishing 
immediately and with certainty the 
goods of the undertaking concerned 
from those of other undertakings. 
(see paras 47-48, 54) 
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