Judgment — ECLI:EU:T:2002:41
Date: 2002-02-27
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Rights of the defence and procedural guarantees;Rights of the defence;Word marks;General
Procedure: Action for annulment - successful;Action for annulment - inadmissible
Origin: Austria

Summary of the Judgment 
1. Community trade mark — Decisions of the Office — Observance of the rights of the 
defence 
(Council Regulation No 40/94, Art. 73) 
II - 683 
SUMMARY — CASE T-34/00 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Lack of distinctive character in a sign — 
Finding of absence of an additional element of imagination or a minimum amount of 
imagination insufficient to hold a sign devoid of distinctiveness 
(Council Regulation No 40/94, Art. 7(1)(b)) 
3. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Signs devoid of any distinctive char­
acter — 'EUROCOOL' 
(Council Regulation No 40/94, Art. 7(1)(b)) 
1. The rights of defence, observance of 
which is a general rule of Community 
law laid down by Article 73 of Regu­
lation No 40/94 on the Community 
trade mark, which provides that 
decisions of the Office for Harmon­
isation in the Internal Market (Trade 
Marks and Designs) are to be based 
only on reasons on which the parties 
have had an opportunity to present 
their comments, are infringed by a 
decision of a Board of Appeal of the 
Office which fails to accord the party 
concerned an opportunity to express its 
views on the absolute grounds for 
refusal to register a Community trade 
mark, applied by the Board of its own 
motion. 
(see paras 20-22) 
2. The absence of distinctive character 
under Article 7(1)(b) of Regulation 
No 40/94 on the Community trade 
mark cannot arise merely from the 
finding that a sign lacks an additional 
element of imagination or a minimum 
amount of imagination. A Community 
trade mark is not necessarily a work of 
invention and is founded not on any 
element of originality or imagination 
but on its ability to distinguish goods 
or services on the market from goods 
or services of the same kind offered by 
competitors. 
(see para. 45) 
3. The term EUROCOOL is not devoid of 
distinctive character for the purposes of 
Article 7(1)(b) of Regulation No 40/94 
on the Community trade mark, regis­
tration of which is sought for services, 
including the storage and keeping of 
goods, especially chilled and frozen 
goods, and the planning of logistic 
systems especially for the transport 
and storage of such goods. 
II - 684 
HUROCOOI. LOGISTIK v OHIM (KUROCOOL) 
In that regard, the fact that the sign is 
made up of components which may 
allude to certain features of the services 
referred to in the application for regis­
tration and that the combination of 
those components complies with lin­
guistic rules is not sufficient to justify 
application of the absolute ground for 
refusal laid down by Article 7(1)(b), 
unless it amounts to proof that such a 
sign, looked at as a whole, would not 
enable the section of the public tar­
geted to distinguish the applicant's 
services from those of its competitors. 
That is not the case, since (i) for a 
targeted public, deemed to be 
composed of specialists who are well 
informed, observant and circumspect 
in the instant case, the term EURO-
COOL, taken as a whole, is inherently 
capable of being perceived as a dis­
tinctive sign and (ii) it is not established 
that the term, taken as a whole, is a 
generic or usual name in the food and 
hotel industry, or the sector for the 
services referred to in the application 
for registration, for the purpose of 
identifying or distinguishing those ser­
vices. 
(see paras 43, 47, 49-50, 52) 
II - 685