Judgment — ECLI:EU:T:2004:27
Date: 2004-01-28
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: General;Three-dimensional 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 — Risk of a monopoly being created in a 
sign — No exclusive link with a specific ground for refusal 
(Council Regulation No 40/94, Art. 7(1)(b) to (e)) 
II - 447 
SUMMARY — JOINED CASES T-146/02 TO T-153/02 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive char­
acter — Three-dimensional mark consisting of the get-up of the product — Interest 
in that get-up remaining available — Effect 
(Council Regulation No 40/94, Art. 7(1)(b)) 
3. Community trade mark — Definition and acquisition of the Community trade 
mark — Signs capable of constituting a mark — Packaging of the product con­
cerned — Vital for the sale of liquid products — Distinctive character — Require­
ment — Sign to be immediately perceived by the consumer as an indication of 
commercial origin 
(Council Regulation No 40/94, Art. 7(1)(b)) 
4. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive char­
acter — Three-dimensional mark — Shape of drinks packaging — Standard appear­
ance 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. When Article 7(1)(b) to (e) of Regu­
lation No 40/94 on the Community 
trade mark is applied, no direct and 
exclusive link can be established 
between the risk that a monopoly 
may be created in a sign and a specific 
absolute ground for refusal. On the 
contrary, the absolute grounds for 
refusal set out in Article 7(1 )(b) to (e) 
of Regulation No 40/94 address the 
concern of the Community legislature 
to prevent the grant to one operator of 
exclusive rights which could hinder 
competition on the market for the 
goods or services concerned. 
(see para. 14) 
2. The interest that competitors of an 
applicant for a three-dimensional mark 
consisting of the product's design may 
have in being able freely to choose 
shapes and patterns for their own 
products is not in itself a ground for 
refusing registration of such a mark, 
nor a criterion sufficient in itself for the 
assessment of the mark's distinctive 
character. Article 7(1 )(b) of Regulation 
No 40/94 on the Community trade 
mark, in excluding the registration of 
signs devoid of any distinctive char­
acter, protects any interest there may 
be in keeping available various alter­
natives for a product's design only to 
the extent to which the design of the 
product in respect of which registration 
is sought is not capable, a priori and 
irrespective of the use made of it within 
the meaning of Article 7(3) of Regu­
lation No 40/94, of functioning as a 
trade mark, that is to say, of enabling 
the relevant public to distinguish the 
II - 448 
DEUTSCHE SISI-WERKE v OHIM (STAND-UP POUCH WITH FLAT BOTTOM) 
product concerned from those having a 
different trade origin. 
(see para. 32) 
3. A sign which fulfils functions other 
than that of a trade mark is distinctive 
for the purposes of Article 7(1 )(b) of 
Regulation No 40/94 on the Commu­
nity trade mark only if it may be 
perceived immediately as an indication 
of the commercial origin of the goods 
or services in question, so as to enable 
the relevant public to distinguish, with­
out any possibility of confusion, the 
goods or services of the owner of the 
mark from those of a different com­
mercial origin. 
As regards, more particularly, a mark 
consisting of the packaging of a liquid 
product in respect of which the mark is 
sought, the average consumer, who 
will perceive the packaging first and 
foremost simply as a means of packag­
ing the product because the product 
must of necessity be packaged for sale, 
will see the form of that packaging as 
an indication of the product's commer­
cial origin only if that form may be 
perceived immediately as such an indi­
cation. 
(see para. 38) 
4. Three-dimensional trade marks con­
sisting of the get-up of various stand-up 
pouches in respect of which regis­
tration is sought for fruit drinks and 
fruit juices within Class 32 of the Nice 
Agreement are devoid of distinctive 
character within the meaning of 
Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark, since 
the differences between the appearance 
applied for and the standard appear­
ance of stand-up pouches constitute 
mere variations on that appearance and 
since, therefore, the pouches are not 
sufficiently unusual for the average 
consumer to perceive them, per se, as 
an indication of the specific commer­
cial origin of the products within that 
category. 
(see paras 34, 42, 52, 57) 
II - 449