Information;Judgment — ECLI:EU:T:2023:377
Date: 2023-07-05
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

Judgment of the General Court (Seventh Chamber) of 5 July 2023 – Wajos v EUIPO (Shape of a container) (Case T‑10/22) (1) (EU trade mark – Application for a three-dimensional EU trade mark – Shape of a container – Absolute ground for refusal – Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result – Article 7(1)(e)(ii) of Regulation (EC) No 207/2009 (now Article 7(1)(e)(ii) of Regulation (EU) 2017/1001) – Decision taken following the annulment by the General Court of an earlier decision – Res judicata) 1. Judicial proceedings – Res judicata – Scope (see paragraph 16) 2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Concept – Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paragraph 18) 3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result – Meaning – Interpretation in the light of the public interest underlying each of them (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paragraphs 19, 35) 4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result – Perception of the average consumer – Effect (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paragraph 20) 5. EU trade mark – Appeals procedure – Action before the EU judicature – Implementation of a judgment annulling a decision adopted by a Board of Appeal – New examination of the appeal (European Parliament and Council Regulation 2017/1001, Art. 72(6)) (see paragraph 24) 6. EU trade mark – Decisions of EUIPO – Legality – Examination by the EU judicature – Criteria – EUIPO examination guidelines – Effect (European Parliament and Council Regulation 2017/1001) (see paragraph 27) 7. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result – Meaning – Presence of non-essential characteristics with no technical function – Existence of other shapes allowing the same technical result to be obtained – Not relevant to the ground for refusal (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paragraphs 36-38, 49) 8. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result – Identification of the essential characteristics of a sign (Council Regulation No 207/2009, Art. 7(1)(e)(ii)) (see paragraph 39) Operative part The Court: 1. Dismisses the action; 2. Orders Wajos GmbH to pay the costs. 1 OJ C 84, 21.2.2022.