Judgment — ECLI:EU:C:2004:649
Date: 2004-10-21
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: Rights of the defence;Acquisition of distinctive character through use
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

summary of the content of the contested decision and explained why it considered the information in that decision, as reproduced, to be sufficient to enable the appellant to take cognisance of the reasons why its application for registration had been refused in regard to each of the categories of goods and services referred to in that application. 39. In a second plea, KWS then accuses the Court of First Instance of having committed an error of law in finding, in the contested judgment, that sufficient reasons were given for the contested decision. It is settled case-law that the assessment by the Court of First Instance of the extent of the obligation to state the reasons on which the contested decision before it was based is a question of law reviewable by the Court on appeal. (25) However, I share the Office’s view that that complaint is also unfounded. 40. It should be recalled that, under the first sentence of Article 73 of the regulation, ‘[d]ecisions of the Office shall state the reasons on which they are based’. That article thus transposes to the Office the obligation to state reasons which Article 253 EC lays down in respect of any legislative act of Community law. I see no reason to believe that the extent of the obligation to state reasons thus set out in Article 73 of the regulation should be different from that laid down in Article 253 EC. In this connection, it is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirement to state reasons must be evaluated according to the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (26) 41. In the case of an Office decision rejecting an application for registration, compliance with the conditions set out above means that that decision must clearly set out the ground or grounds for refusal, as provided for by the regulation, on which the rejection is based and the reasons why that or those grounds applies / apply in regard to each of the categories of goods and services in respect of which registration of the trade mark is sought. The question whether the reasons thus given are sufficient to meet the twofold objective of the obligation to state reasons, that is to say to enable the applicant to ascertain the reasons for the rejection of his application and to enable the Community court to exercise its power of review as to the decision’s legality, must be evaluated according to the circumstances of each case, in particular in the light of the exchanges between the applicant and the Office, the trade mark at issue and the goods and services in respect of which its registration is sought. It is by reference to those considerations that it is necessary to examine whether, in this case, the Court of First Instance was right to hold that the contested decision did not infringe the obligation to state reasons laid down by Article 73 of the regulation. 42. The contested decision shows that the Board of Appeal stated that the application for registration fell foul of Article 7(1)(b) of the regulation. (27) The Board of Appeal also set out the reasons why that absolute ground for refusal is applicable in this case. It referred, first of all, to general considerations. First, a colour per se does not have distinctive character unless it has been demonstrated that it has acquired such character through usage and, secondly, colours must be kept free for all undertakings. According to the Board of Appeal, a colour per se may therefore be recognised as having distinctive character in itself only in certain circumstances. (28) 43. The Board of Appeal went on to explain why such specific circumstances are not present in this case in regard to the goods to which the application for registration relates. Thus, the colour at issue, which is by nature a commonly found ‘basic colour’, in the shade in which it is claimed or in very similar shades, is not unusual as far as those goods are concerned. (29) The Board of Appeal pointed out, with respect to seeds, that seed manufacturers have for some time coloured goods of this type to indicate that they have been treated. By way of example, it cited an extract from a text posted on the website of a seed colourants manufacturer. The Board of Appeal stated that the colours used in that sector also include orange and that, in the light of those considerations, such a colour would be perceived by the relevant customers as an indication not of the origin of the product but of the fact that the seeds concerned had been treated. (30) As regards the treatment installations for seeds, it pointed out that, as the examiner found, it is not rare to come across machines in that colour. (31) 44. Lastly, the Board of Appeal pointed out that the appellant’s competitors have an interest in also being able to use that colour, that the decisions of the German authorities competent in the field, as relied on by the appellant, are not binding on the Office and that the appellant did not contend that the colour at issue had acquired distinctive character through usage. (32) 45. In the light of all those factors, it is my view that the reasons given for the contested decision were sufficient to enable the appellant to understand the legal and factual grounds on which its application to register the colour orange per se in respect of each of the categories of goods concerned had been rejected and to enable the Court of First Instance to exercise its power to review the legality of that decision. The Court of First Instance did not therefore commit an error of law by holding that the statement of reasons for the contested decision complied with the requirements laid down in Article 73 of the regulation. 46. That is why, in my opinion, the pleas in law alleging infringement of the obligation to state reasons must be dismissed as unfounded. B – Infringement of the right to a hearing 1. Arguments of the parties 47. KWS maintains that, in this case, the Board of Appeal based the contested decision on a single document, namely an extract taken from the website of a seed colourants manufacturer, and that that information was not mentioned for the first time until that decision. The Board of Appeal therefore committed an infringement of the right to a hearing. However, the Court of First Instance did not establish that infringement and took into account only whether the evidence was crucial for KWS to understand the contested decision. It also wrongly held that the appellant was essentially aware of the facts which were going to be examined by the Board of Appeal and had therefore had an opportunity to state its views. The Court of First Instance thus failed to comply with the rule that the authority which takes the disputed decision must give the party concerned the opportunity to present its comments on all the factors which may have a bearing on the substance of that decision, and the fact that, in order for there to be an infringement of the right to a hearing, it is sufficient that a different decision would merely have been possible if that infringement had not occurred. 48. KWS also maintains that, if that document had been communicated to it, it would have been able to make known its observations on its content. In particular, it would have been able to point out that, on the website in question, it was explained that the colour of seeds was perceived as an indication of origin. 49. Furthermore, the Court of First Instance failed to reproduce that argument in the contested judgment, with the result that it too infringed the right to a hearing. The appellant maintains that those infringements by the Board of Appeal and the Court of First Instance deprived it of the possibility of restricting the list of products referred to in its application for registration to seeds and thus of ensuring that its application was granted. 50. In its defence, the Office states that the Court of First Instance did not infringe the appellant’s right to a hearing because the appellant had an opportunity to put forward all its arguments, in particular in its reply. It then contends that the reference in the contested decision to the website of a seed colourants manufacturer does not constitute the grounds for that decision but is merely a factor intended to corroborate it. Moreover, the contested decision would not have been different if the appellant had reduced the list of products referred to in its application for registration. 2. Findings 51. The arguments advanced by the appellant under the plea in law alleging infringement of the right to a hearing can likewise be broken down into two different pleas. 52. First of all, the complaint that the Court of First Instance itself infringed the appellant’s right to a hearing seeks a declaration that the Court of First Instance, in the context of the judicial proceedings, did not observe the appellant’s rights of defence. That plea is based not on the second sentence of Article 73 of the regulation but on the fundamental principle of Community law of respect for the rights of the defence, which requires that any person who is party to proceedings before the Court of First Instance may make known any issues useful to the defence of his interests. Under that plea, the appellant complains that the Court of First Instance did not reproduce in the contested judgment its arguments relating to the fact that the content of the website in question had not been communicated to it beforehand. 53. It should be pointed out that, according to case-law, the right to be heard in judicial proceedings does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party. (33) It is for the court to take note of those submissions and, after assessing the evidence, to decide whether or not to grant the relief sought by the parties and give reasons for its decision. (34) In this case, it is apparent from the contested judgment that, while the Court of First Instance did not reproduce the arguments in question in detail, it did include a summary of them (35) and gave a reasoned response to them in paragraphs 58 and 59. Consequently, the plea in law alleging infringement by the Court of First Instance of the appellant’s right to a hearing during the judicial proceedings is unfounded. 54. Then, under the second plea, the Court of First Instance is accused of having committed an error of law in finding that the Board of Appeal had not infringed the appellant’s right to a hearing. In so doing, the Court of First Instance therefore failed to take into account the extent of the obligation incumbent on the Office under the second sentence of Article 73 of the regulation. It should be pointed out that the question whether the Court of First Instance correctly applied the principles governing the rights of defence and in particular the right to be heard constitutes a question of law which it falls to the Court of Justice to examine when considering an appeal. (36) 55. Under the second sentence of Article 73 of the regulation, decisions of the Office ‘shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments’. That article thus establishes in the context of the procedure applicable before the Office the fundamental principle of Community law to the effect that the rights of the defence must be observed in all proceedings, even those of an administrative nature. (37) In that connection, it should be pointed out that the legislature took care to refer to that principle not only in general terms in Article 73 of the regulation, but also in the provisions concerning each of the stages which may lead to a decision contrary to the interests of an economic operator, both in the regulation and in the rules adopted for the purposes of implementing that regulation. (38) Thus, that principle is referred to, inter alia, in the provisions concerning the examination as to absolute grounds for refusal (39) and in those concerned specifically with the procedure applicable before the Board of Appeal. (40) 56. Under that principle, a Board of Appeal may base its decision refusing to register a trade mark only on matters of fact or of law on which the applicant has been able to comment. (41) The same can be said to be true of the matters of fact or of law which constitute the grounds of the examiner’s decision contested before the Board of Appeal in this case. Such matters should, in principle, have been submitted for comment to the applicant by the examiner himself and the applicant had a further opportunity to contest them in the course of his appeal before that Board. Similarly, Article 73 of the regulation cannot be interpreted as requiring the Office to gather in advance the applicant’s comments on the matters of fact or of law which the applicant set out in its exchanges with the examiner or in the applicant’s appeal against the examiner’s decision. (42) However, where the Board of Appeal decides, in accordance with Article 74 of the regulation, to gather of its own motion facts which are intended to serve as a basis for its decision rejecting an application to register a trade mark and which, necessarily, did not appear either in the examiner’s decision or in the documents submitted by the applicant, it is obliged to communicate them to the latter so that it can make known its comments. 57. In this case, the documents before the Court show that the Board of Appeal did not communicate to the appellant the result of the research which it had conducted into the use of the colour at issue in conjunction with the products concerned, and to which reference is made in the contested decision, nor the content of the colourants manufacturer’s website, an extract from which it cited in that decision. Nevertheless, it is my view that this does not constitute an infringement of the rights of the defence on account of which the Court of First Instance should have annulled the contested decision. 58. Indeed, as is clear from the wording of Article 58 of the Statute of the Court of Justice, pleas alleging a breach of procedure may be declared founded only if the breach in question adversely affects the interests of the appellant. It is necessary, therefore, in order for there to be an infringement of the rights of the defence, that the proceedings could have led to a different result if the administrative authority had not committed the breach. (43) Failing that, it is incumbent on the appellant to demonstrate that, had there been no breach, it would have been better able to ensure its defence. (44) 59. In my view, those conditions are not fulfilled in this case. First of all, it is true that the research referred to by the Board of Appeal in the contested decision contradicts the appellant’s claims that the colour at issue is not used by its competitors to colour the products in question. (45) However, the statement that the colour orange was already used in connection with those products does not constitute a necessary element of the grounds for refusing the application for registration. As has been seen, the Board of Appeal, reiterating in this respect the examiner’s decision, considered that the colour at issue did not have distinctive character in respect of the products concerned because a colour per se is, in principle, devoid of such character, and that the colour orange is very commonplace. It also stated that seeds are usually coloured differently from their natural colour, in particular in order to indicate that they have been treated, so that their colour is not perceived as an indication of origin, and it is not rare to come across machines in orange or a similar shade. Lastly, it stated that the appellant’s competitors too may have an interest in using that colour. 60. As will be seen in the examination of the last ground of appeal, those considerations provide a sufficient basis on which to refuse the application for registration. Consequently, the assertion that the colour orange was also used to colour seeds and seed treatment installations serves only to corroborate the conclusion that that colour is not perceived by the relevant public as an indication of the origin of the appellant’s products. 61. As regards, next, the content of the website cited in the contested decision, it simply confirms an argument advanced by the appellant itself in support of its appeal against the examiner’s decision, that is that seed manufacturers colour their products. (46) 62. In any event, the appellant does not provide any proof that prior communication of those documents might have prompted it to limit the list of products to which its application for registration related or, more importantly, show how the Board of Appeal’s decision might have been different if that application had been submitted only in respect of seeds. Indeed, the grounds for refusal given by the Board of Appeal relate in particular to seeds. 63. Accordingly, the Court of First Instance was entitled to hold, without breaching Article 73 of the regulation, that the appellant’s rights of defence had not been infringed in such a way as to justify the annulment of the contested decision because, on the one hand, the appellant was already aware of the grounds on which its application was rejected, most of which were contained in the examiner’s decision or in its own appeal, and, on the other hand, the fact that the documents at issue were not communicated beforehand did not adversely affect the defence of its interests. In the light of these considerations, it is my view that the pleas in law alleging infringement of the right to a hearing are unfounded. C – The plea in law alleging infringement of Article 74 of the regulation, concerning the Office’s examination of the facts of its own motion 64. KWS maintains that the Court of First Instance, by confining itself to the finding that the Board of Appeal ‘did consider and make use of a number of pertinent facts’, failed to comply with the requirement laid down in Article 74 of the regulation, under which the ‘Office shall examine the facts of its own motion’. Thus, according to the appellant, what matters is not whether the facts were examined but whether they were examined in full. Such an examination should enable the Office to establish with certitude whether or not there are grounds for refusal under Article 7 of the regulation, since the taking of the decision whether or not to register a sign as a trade mark is a competence to be exercised strictly in accordance with the relevant rules and not at the Office’s discretion. 65. In this case, however, while the contested decision talks of the ‘Board’s research’, it refers only to the website of a seed colourants manufacturer, which cannot constitute sufficient justification for a refusal. The justification which that reference provides for such a refusal is particularly weak given that the web page in question is from the site of an American undertaking and it has not been established that the practices prevailing on the American market can constitute relevant evidence in relation to those observed within the Community. Lastly, since the web page is in English, it is neither clear nor established that the relevant public in the Community would have been aware of it. 66. Like the Office, I consider this plea to be inadmissible. For, on the pretext of an infringement of Article 74 of the regulation and the contention that the Office would probably have granted its application for registration if it had examined the relevant facts in more detail, the appellant is actually seeking to call into question the appraisal of the facts carried out first by the Board of Appeal and then by the Court of First Instance. However, it is settled case-law that, under Article 225 EC and Article 58 of the Statute of the Court of Justice, an appeal may be based only on the infringement of rules of law, to the exclusion of any appraisal of the facts. (47) D – The infringement of Article 7(1)(b) of the regulation 1. Arguments of the parties 67. KWS points out that its application for registration was rejected by the Office and by the Court of First Instance only on the basis of Article 7(1)(b) of the regulation, under which trade marks which are devoid of any distinctive character cannot be registered. 68. It states that, according to case-law, a trade mark has distinctive character if it can be considered to be an indication of origin, that it is sufficient, in that connection, that the trade mark should merely be capable of such usage, that it must be assessed with regard to the goods and services concerned and not in an abstract manner, that all the circumstances of the particular case and, above all, usage, must be taken into consideration and, lastly, that regard must be had to the sectors actually concerned. 69. KWS accuses the Court of First Instance of having failed to take those principles into account in that, first, it applied a stricter criterion in respect of colour marks than in respect of other marks, secondly, it relied on its own perception rather than that of the circles concerned and, lastly, it misapplied the criterion of distinctive character. 70. Thus, the Court of First Instance committed an error in stating that, in the case of a colour, the relevant public’s perception ‘is not necessarily the same … as it is in the case of a word or figurative mark, where the sign is independent of the appearance of the goods which it identifies’. (48) Next, the Court of First Instance was wrong to consider that the colour at issue did not have distinctive character in respect of the products concerned even though they are targeted at a specialist market. As regards agricultural products, and in particular seeds, the appellant alone uses the shade of orange at issue to colour its products. The Court of First Instance was wrong, therefore, to assert that the use of other shades of colours by competitors made it impossible to regard the shade of orange at issue as an indication of origin. That assessment is particularly erroneous given that there is no uniform use of colours in the sector concerned. The treatment installations for seeds are special machines intended for industrial undertakings and designed to be placed in workshops. The Court of First Instance therefore also committed an error of assessment in holding that it was commonplace to paint such machines and, in particular, to paint them orange. 71. The Office maintains that that plea is unfounded. 2. Findings 72. In the judgment in Libertel the Court accepted that a colour per se is capable of constituting a trade mark within the meaning of Article 2 of the directive where, as in the case at issue, it is designated by an internationally recognised identification code. (49) It went on to specify the criteria which must be used to assess, in each particular case, whether a colour per se is capable of having a distinctive character within the meaning of Article 3(1)(b) of the directive and, therefore, of being registered as a trade mark in respect of the goods and services specified. 73. Given that the wording of Articles 2 and 3(1)(b) and (3) of the directive is comparable to that of Articles 4 and 7(1)(b) and (3) of the regulation, the interpretation given by the Court in Libertel can be transposed to the regulation. Moreover, an interpretation that the Court gives to a provision of Community law clarifies and defines the meaning and scope of that provision only as it should have been understood and applied from the time of its entry into force. (50) The retroactive scope of the judgment in Libertel in relation to the interpretation of the provisions of the directive therefore applies, mutatis mutandis, to the corresponding provisions of the regulation. 74. In my Opinions in Libertel and Heidelberger Bauchemie, I explained why I took the view that a colour per se does not fulfil the conditions, laid down in Article 2 of the directive, under which a sign may be considered to be one of which a trade mark may consist. However, that is not the issue in this appeal. I shall not therefore reiterate my arguments in that regard but shall continue to examine the plea in law alleging infringement of Article 7(1)(b) of the regulation on the basis of the conditions established by the Court in its judgment in Libertel. 75. It should be recalled that, according to the settled case-law of the Court, the essential function of a trade mark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin. (51) It follows that, on receipt of an application for registration of a trade mark, the Office must determine whether that trade mark is capable of making known to the relevant public the fact that the products or services to which the application for registration relates originate from a specific undertaking. That is why Article 7(1)(b) of the regulation provides that ‘trade marks which are devoid of any distinctive character’ are not to be registered. It is also common ground that the question whether the trade mark in question is capable of having a distinctive character must be assessed by reference, first, to the goods or services in respect of which its registration is sought and, second, by reference to the relevant public’s perception of that mark. (52) 76. In its judgment in Libertel the Court held that, where the relevant public is made up of average consumers, reasonably well informed and reasonably observant and circumspect, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks and must place his trust in the imperfect picture of them that he has kept in his mind. It stated that the perception of the relevant public is not necessarily the same in the case of a sign consisting of a colour per se as it is in the case of a word or figurative mark consisting of a sign that bears no relation to the appearance of the goods it denotes. According to the Court, while the public is accustomed to perceiving word or figurative marks instantly as signs identifying the commercial origin of the goods, the same is not necessarily true where the sign forms part of the look of the goods in respect of which registration of the sign as a trade mark is sought. Consumers are not in the habit of making assumptions about the origin of goods based on their colour or the colour of their packaging, in the absence of any graphic or word element, because as a rule a colour per se is not, in current commercial practice, used as a means of identification. A colour per se is not normally inherently capable of distinguishing the goods of a particular undertaking. (53) 77. In the light of these considerations and contrary to what the appellant claims, the Court of First Instance did not therefore misinterpret Article 7(1)(b) of the regulation in stating that, while that provision does not draw any distinction between different types of sign, the fact remains that the relevant public’s perception is not necessarily the same in the case of a colour per se as it is in the case of a sign which is independent of the appearance of the goods which it identifies. (54) 78. Similarly, the allegation that the Court of First Instance assessed the distinctive character of the colour at issue not by reference to the relevant public, as it should do, but in the light of its own criteria is also unfounded. 79. Thus, the Court of First Instance found that the relevant public is a particular sector of the public which is more knowledgeable and attentive than the general public, but which neither specialises in each of the products concerned nor is a lay public. (55) With regard to agricultural, horticultural and forestry products in Class 31, and more specifically seeds, the Court of First Instance considered that that public can recognise their colour as an indication of origin, since it is different from their natural colour. (56) It took the view, however, that since the use of colours, including the shade of orange claimed, for those goods is not rare, that colour would not enable the relevant public to distinguish the appellant’s goods from those of its competitors. (57) The Court of First Instance added that, since that public has a degree of knowledge such that it is not unaware that seed colour may indicate that seeds have been treated, that public will not perceive the colour at issue as an indication of origin. (58) 80. Similarly, as regards treatment installations in Classes 7 and 11, the Court of First Instance considered that the relevant public was also made up of average consumers of all agricultural machinery. It took the view that, since it is not rare to see machines in the shade of orange at issue or a similar colour, the relevant public would perceive that colour as merely an element of finish. (59) 81. Those grounds of the contested judgment therefore clearly show that the Court of First Instance assessed whether the colour at issue was capable of having a distinctive character on the basis of the perception of the relevant public, defined by reference to each of the categories of products to which the application for registration related. 82. Lastly, I do not consider that the appellant was justified in accusing the Court of First Instance of having made an error in its application of Article 7(1)(b) of the regulation in holding that the colour at issue did not exhibit a distinctive character in respect of the products referred to in the application for registration. 83. Thus, in the judgment in Libertel, the Court found that it was only in exceptional circumstances, particularly where the number of goods or services concerned by the application for registration is very restricted and the market is very specific, that a colour per se may be recognised as having a distinctive character without any prior use. (60) Moreover, it held that there was a public interest in not unduly restricting the availability of colours for the other operators who offer goods or services of the same type as those in respect of which registration is sought, on account of the limited number of colours actually available, so that the chances of such a colour being registered will be all the more reduced the higher the number of goods or services covered is. (61) 84. In the contested judgment, the Court of First Instance considered that the colour at issue was devoid of any distinctive character in relation to the products in Class 31 because these are coloured and, more specifically in the case of seeds, their colour sometimes indicates that they have undergone treatment. As regards treatment installations for seeds in Classes 7 and 11, it held that the appellant had not demonstrated that they belonged to a special category of machines which were not coloured, and that orange and similar colours are usually used to colour machines in general. 85. In so far as the Court of First Instance, in the contested judgment, dismisses the application in respect of the products, it cannot be criticised for having failed to examine, in addition to the abovementioned grounds, the criteria established by the Court in its judgment in Libertel in relation to the number of products concerned, the specificity of the market and the requirement to keep the colour at issue available to competitors. It seems irrefutable, however, that taking those criteria into account in this case could only have provided further justification for refusing the appellant’s application. 86. On the other hand, the contested judgment is open to criticism in so far as, in it, the Court annulled that part of the contested decision concerning the services in Class 42 because it concluded that the colour at issue was not, in relation to those services, devoid of distinctive character, without having examined all the relevant criteria or by applying them in a manner contrary to that adopted by the Court in its judgment in Libertel. (62) However, as I have already noted, the Office has not brought a cross-appeal and the judgment cannot therefore be reviewed by the Court of Justice in this regard. 87. The question whether or not the Court of First Instance accurately appraised the facts of the case in finding that the relevant public would not perceive the colour at issue as an indication of the origin of the seeds or the machines concerned involves a purely factual assessment. It is a well-known fact that the appraisal of the facts by the Court of First Instance, save where the clear sense of the evidence before it is distorted, does not constitute a question of law which is subject, as such, to review by the Court of Justice on appeal. (63) In the context of Community trade marks, the Court applies that rule to word marks where it is called upon to review the appraisal carried out by the Court of First Instance as to whether the trade mark in question is indeed descriptive of the goods and services concerned for the purposes of Article 7(1)(c) of the regulation, or is devoid of any distinctive character within the meaning of Article 7(1)(b). (64) I see no reason why a different position should be adopted when it comes to reviewing the practical application by the Court of First Instance of the criteria to which the Court has made the registration of colours per se as trade marks subject. Moreover, in this case, the appellant does not claim that the Court of First Instance distorted the evidence before it. VI – Conclusion 88. In the light of the foregoing considerations, I therefore propose that the Court dismiss the appeal and order KWS Saat AG to pay the costs. 1 – Original language: French. 2 – Hereinafter ‘KWS’. 3 – Case T-173/00 [2002] ECR II‑3843 (hereinafter ‘the contested judgment’). 4 – Hereinafter ‘the Office’. 5 – Hereinafter ‘the contested decision’. 6 – Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1, hereinafter ‘the directive’). 7 – Case C-104/01 [2003] ECR I‑3793. 8 – Case C-49/02 [2004] ECR I-6129. 9 – Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p.1), as amended (hereinafter ‘the regulation’). 10 – The Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended. 11 – Contested judgment (paragraphs 16 to 19). 12 – Ibid. (paragraph 25). 13 – Ibid. (paragraphs 26 and 28). 14 – Ibid. (paragraph 29). 15 – Ibid. (paragraph 31). 16 – Ibid. (paragraph 32). 17 – Contested judgment (paragraph 39). 18 – Contested judgment (paragraph 42). 19 – Ibid. (paragraph 46). 20 – Contested judgment (paragraphs 54 and 55). 21 – Ibid. (paragraph 56). 22 – Ibid. (paragraphs 58 and 59). 23 – Ibid. (paragraph 60). 24 – Paragraph 9. 25 – Case C-166/95 P Commission v Daffix [1997] ECR I‑983, paragraphs 24 and 33 to 38, and Case C-188/96 P Commission v V [1997] ECR I‑6561, paragraph 24. 26 – Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63, and Case C-265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 93. 27 – Paragraph 25. 28 – Paragraph 14. 29 – Paragraphs 16 and 17. 30 – Paragraphs 18 to 20. 31 – Paragraph 21. 32 – Paragraphs 22 to 24. 33 – Case C-221/97 P Schröder and Others v Commission [1998] ECR I‑8255, paragraph 24. 34 – Idem. 35 – It should be recalled that the Court of First Instance summarised the appellant’s arguments as follows: ‘[t]he applicant argues that the evidence on which the Office’s decision was based was not communicated to it, making it impossible to verify the accuracy of the Office’s research, to comprehend the reasoning underlying the decision and the merits thereof and, if appropriate, to contest its conclusions. The applicant considers that it was thereby deprived of its right to a hearing, and of the option of restricting the list of goods and services in the application’ (paragraph 49 of the contested judgment). 36 – Case C-462/98 P Mediocurso v Commission [2000] ECR I‑7183, paragraph 35. 37 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 9, and Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21. 38 – Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 (OJ 1995 L 303, p. 1). 39 – Article 38(3) of the regulation and Rule 11 in Article 1 of Regulation No 2868/95. 40 – Article 61(2) of the regulation. 41 – Case T-198/00 Hershey Foods v OHIM (Kiss device with plume) [2002] ECR II‑2567, paragraph 25, and Case T-16/02 Audi v OHIM [2003] ECR II‑5167, paragraphs 71 and 75. 42 – In the abovementioned judgment in Hershey Foods v OHIM(Kiss device with plume), the Court of First Instance held, in this regard, that the Board of Appeal was entitled, in the context of the examination of an appeal against the examiner’s decision, to use any of the items of information included in the application form, without first having to give the applicant the opportunity to comment on them (paragraph 20). 43 – Case 30/78 Distillers Company v Commission [1980] ECR 2229, paragraph 26, and Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31. 44 – Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 81, and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C‑247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse VinylMaatschappij and Others v Commission [2002] ECR I‑8375, paragraph 318. 45 – See the grounds of the appeal brought by the appellant against the examiner’s decision (paragraph 8 of the contested decision). 46 – Idem. 47 – See, inter alia, VBA v Florimex and Others, paragraph 138. 48 – Contested judgment (paragraph 29). 49 – Paragraphs 27 to 42. 50 – See, inter alia, Case C-184/99 Grzelczyk [2001] ECR I‑6193, paragraph 50. 51 – Case C-39/97 Canon [1998] ECR I‑5507, paragraph 28; Case C‑517/99 Merz & Krell [2001] ECR I‑6959, paragraph 22; and Case C-218/01 Henkel [2004] ECR I‑1725, paragraph 30. 52 – See, inter alia, Libertel, paragraph 75, and Henkel, paragraph 50. 53 – .Libertel, paragraphs 63 to 65. 54 – Contested judgment (paragraph 29). 55 – Ibid. (paragraph 31). 56 – Ibid. (paragraph 32). 57 – Ibid. (paragraph 33). 58 – Ibid. (paragraph 35). 59 – Ibid. (paragraphs 39 and 40). 60 – Paragraph 66. 61 – Ibid. (paragraphs 54 to 56). 62 – Thus, in the contested judgment, the Court of First Instance held that, ‘in so far as the colour claimed … is a specific shade, many colours remain available for identical or similar services’ (paragraph 45), whereas, in the judgment in Libertel, the Court held that ‘the fact that the number of colours actually available is limited means that a small number of trade mark registrations for certain services or goods could exhaust the entire range of colours available’ (paragraph 54). 63 – Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I‑4717, paragraph 78, and order in Case C-323/00 P DSG v Commission [2002] ECR I‑3919, paragraph 34. 64 – Case C-104/00 P DKV v OHIM [2002] ECR I‑7561, paragraph 22, and order in Case C‑326/01 P Telefon & Buch v OHIM [2004] ECR I‑1371, paragraph 35.