Judgment — ECLI:EU:T:2003:62
Date: 2003-03-06
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Marks devoid of any distinctive character;Actions before the Community Courts
Procedure: Action for annulment - successful
Origin: Provisional data;United States

Summary of the Judgment 
1. Community trade mark — Appeals procedure — Appeals before the Community 
Courts — jurisdiction of the Court of First Instance — Review of the facts in the light 
of evidence adduced before it for the first time — Not included 
(Rides of Procedure of the Court of First Instance, Art. 135(4); Council Regulation 
No 40/94, Art. 63) 
II - 701 
SUMMARY — CASE T-128/01 
2. Community trade mark — Definition and acquisition of Community trade mark — 
Absolute grounds for refusal — Marks devoid of distinctive character — Figurative 
mark comprising a representation of a vehicle grille 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. In an action for review of the legality of 
the decisions of the Office for Harmon­
isation in the Internal Market (Trade 
Marks and Designs) within the mean­
ing of Article 63 of Regulation 
No 40/94 on the Community trade 
mark, it is not the Court's function to 
re-evaluate the factual circumstances in 
the light of evidence adduced for the 
first time before it. To admit such 
evidence is contrary to Article 135(4) 
of the Rules of Procedure of the Court 
of First Instance, which prohibits the 
parties from changing the subject-
matter of the proceedings before the 
Board of Appeal. 
(see para. 18) 
2. 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. 
With regard, in that context, to the 
registration, sought in respect of 
'vehicles; apparatus for locomotion by 
land, air or water; parts thereof' in 
Class 12 of the Nice Agreement, of a 
figurative mark comprising a represen­
tation of the front part of a car having 
an irregular shape and with seven wide 
vertical openings in the centre and a 
circle representing the headlights of the 
vehicle on each side at the top, the 
mark is not devoid of any distinctive 
character in so far as it is an unusual 
grille design, conveying the impression 
of an old-fashioned grille, in a simple 
configuration, which cannot be 
regarded as altogether commonplace, 
so that the grille in question must be 
considered to be capable of leaving an 
impression on the memory of the target 
public as an indication of commercial 
origin and thus of distinguishing and 
setting apart motor vehicles bearing 
that grille from those of other under­
takings. 
(see paras 46, 48, 50) 
II - 702