Judgment — ECLI:EU:T:2002:28
Date: 2002-02-07
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Three-dimensional marks
Procedure: Action for annulment - unfounded

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive char­
acter — Three-dimensional marks — Assessment criteria as compared with other 
categories of mark 
(Council Regulation No 40/94, Art. 7(1)(b)) 
II - 467 
SUMMARY — CASE T-88/00 
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 marks — Cylindrical torch shapes 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark, under 
which marks which are devoid of any 
distinctive character are to be refused 
registration, draws no distinction 
between different categories of mark. 
Accordingly, it is not appropriate to 
apply more stringent criteria or impose 
stricter requirements when assessing 
the distinctiveness of three-dimensional 
marks comprising the shape of the 
goods themselves than are applied or 
imposed in the case of other categories 
of mark. In order to assess a mark's 
distinctiveness, it is necessary to take 
account of all relevant elements linked 
to the specific circumstances of the case 
and one such element is the fact that it 
cannot be excluded that the nature of 
the mark in respect of which regis­
tration is sought might influence the 
perception which the targeted public 
will have of the mark. 
The distinctiveness requirements appli­
cable to three-dimensional marks com­
prising the shape of the goods cannot 
be less strict than those applicable to 
word marks, since consumers are more 
accustomed to directing their attention 
to the latter. 
(see paras 32-33, 38) 
2. The three-dimensional marks consist­
ing of cylindrical torch shapes in 
respect of which registration was 
sought for apparatus for lighting and 
accessories for such apparatus are 
devoid of any distinctive character 
within the meaning of Article 7(1)(b) 
of Regulation No 40/94 on the Com­
munity trade mark, since a cylinder is a 
common shape for a torch which cor­
responds to shapes commonly used by 
other torch manufacturers on the mar­
ket and thus, rather than enabling the 
product to be differentiated and linked 
to a specific commercial source, gives 
II - 468 
MAG INSTRUMENT v OHIM (TORCH SHAPE) 
the consumer an indication as to the 
nature of the product. Moreover, the 
aesthetic qualities and the unusually 
original design of the shapes claimed as 
marks appear, as a result of those 
features, as variants of a common torch 
shape rather than as shapes capable of 
differentiating the goods and indicat­
ing, on their own, a given commercial 
origin. 
(see paras 36-37, 42) 
II - 469