Judgment — ECLI:EU:T:2002:279
Date: 2002-11-20
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;General
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 — 'Kit Pro' and 'Kit Super Pro' 
(Council Regulation No 40/94, Art. 7(1)(b)) 
II - 4881 
SUMMARY — JOINED CASES T-79/01 AND T-86/01 
2. 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 
(Council Regulation No 40/94, Art. 7(l)(b)) 
3. Community trade mark — Decisions of the Office — Legality — Examination by 
the Community judicature — Criteria 
(Council Regulation No 40/94) 
1. 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. As regards the regis­
tration of 'Kit Pro' and 'Kit Super Pro', 
applied for in respect of parts for 
repairing drum brakes in land vehicles, 
those combinations of words are 
devoid of any distinctive character in 
relation to those goods. 
Each of the trade marks applied for 
consists of a combination of com­
ponents, each of which is devoid of 
distinctive character as regards those 
goods and there does not appear to be 
any concrete evidence to show that the 
marks, considered as a whole, are 
greater than the sum of their parts. 
(see paras 18, 28, 30-31) 
2. In the context of the examination of 
the absolute ground for refusal referred 
to in Article 7(l)(b) of Regulation 
No 40/94 on the Community trade 
mark, and in respect of a trade mark 
made up of several components (a 
compound mark), for the purposes of 
assessing its distinctive character, it is 
appropriate to consider the mark as a 
whole. However, that is not incom­
patible with an examination of each of 
the mark's individual components in 
turn. 
The fact that a compound trade mark 
consists only of components devoid of 
distinctive character as regards the 
goods or services concerned is evidence 
which generally justifies the conclusion 
that that trade mark, considered as a 
whole, is also devoid of distinctive 
character in relation to those goods or 
services. Such a conclusion can be 
dismissed only if concrete evidence, 
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BOSCH v OHIM (KIT PRO AND KIT SUPER PRO) 
such as, for example, the way in which 
the various components are combined, 
indicates that the compound trade 
mark, considered as a whole, is greater 
than the sum of its parts. 
(see paras 22, 29) 
3. Decisions concerning registration of a 
sign as a Community trade mark which 
the Boards of Appeal of the Office for 
Harmonisation in the Internal Market 
(Trade Marks and Designs) are called 
on to take under Regulation No 40/94 
are adopted in the exercise of circum­
scribed powers and are not a matter of 
discretion. Therefore, the registrability 
of a sign as a Community trade mark 
must be assessed solely on the basis of 
that regulation, as interpreted by the 
Community judicature, and not on the 
basis of a previous practice of the 
Boards of Appeal. 
(see para. 32) 
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