Judgment — ECLI:EU:T:2008:542
Date: 2008-12-02
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks
Procedure: Action for annulment - successful

Summary of the Judgment Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) From the point of view of average English-speaking consumers aged between 18 and 70 years, the verbal sign FUN, registration of which is sought for ‘land motor vehicles and parts and fittings thereof’ in Class 12 of the Nice Agreement, is not descriptive of the goods covered by the application for a Community trade mark for the purposes of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark. In connection with land motor vehicles, the sign ‘FUN’ may be understood as indicating that they can be amusing or that they can be a source of amusement. The sign ‘FUN’ can thus be viewed as giving the goods a positive image, like an image for promotional purposes, by giving the relevant consumer the idea that a car can be a source of amusement. None the less, although, in some cases, a land motor vehicle can be a source of amusement for its driver, the sign ‘FUN’ does not go beyond suggestion. Accordingly the link between the word ‘fun’, on the one hand, and land motor vehicles, on the other hand, is too vague, uncertain and subjective to confer descriptive character on that word in relation to those goods. Unlike some indications that are descriptive of the characteristics of a vehicle, such as ‘turbo’, ‘ABS’ or ‘4x4’, the sign ‘FUN’ on the back of a vehicle cannot serve to designate directly a land motor vehicle or one of its essential characteristics. If the sign is placed in that position, the relevant consumer will perceive it as designating the commercial origin of the goods. The goods designated in the application for registration as parts and fittings for land motor vehicles are meant to be used exclusively in connection with those vehicles and cannot be used alone. The parts and fittings for land motor vehicles covered by the application for registration are inseparably linked to those vehicles and it is therefore appropriate to adopt a solution in relation to those parts and fittings that is identical to that adopted in relation to land motor vehicles. (see paras 27, 34-36, 44)