Judgment — ECLI:EU:T:2002:300
Date: 2002-12-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Signs of which a trade mark may consist;Marks devoid of any distinctive character
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 — Marks devoid of any distinctive char­
acter — Examination in the case of a compound mark — Need to examine each of 
the elements independently of their relative importance 
(Council Regulation No 40/94, Art. 7(1)(b)) 
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SUMMARY — CASE T-91/01 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks devoid of any distinctive char­
acter — Figurative abbreviation 'BioID' 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. The absence of distinctive character, 
within the meaning of Article 7(1 )(b) 
of Regulation N o 40/94 on the Com­
munity trade mark, of a compound 
m a r k — t h a t is to say, a m a r k 
composed of several elements — can­
not be determined solely by reference 
to the relative importance of certain 
elements of which it is composed as 
compared with that of other elements 
of the mark, in respect of which an 
absence of distinctive character has 
been established. A compound mark 
cannot fall under the abovementioned 
article if one of its composite elements 
is distinctive in respect of the goods 
and services concerned. That is true 
even if the sole distinctive element of 
the compound mark is not dominant in 
r e l a t i on to the o the r c o m p o s i t e 
elements of the mark. 
Accordingly, the distinctive character 
of a compound mark must be assessed 
in the light of all the elements of which 
it is composed. 
(see para. 36) 
2. According to Article 7(1)(b) of Regu­
lation N o 40/94 on the Community 
trade mark, 'trade marks which are 
devoid of any distinctive character' are 
not to be registered. As regards regis­
tration of the figurative mark contain­
ing the abbreviation 'BioID', which 
was applied for in respect of goods 
and services in Classes 9, 38 and 42 of 
the Nice Agreement, including goods 
the use of which is required for the 
biometric identification of live organ­
isms and services provided by means of 
such identification, that mark is devoid 
of distinctive character in so far as it is 
c o m p o s e d of a c o m b i n a t i o n of 
elements each of which is likely to be 
used, in trade, to present the goods and 
services claimed and is therefore devoid 
of distinctive character in respect of 
those goods and services. 
(see paras 22, 30-31, 41) 
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