Order — ECLI:EU:C:2014:2222
Date: 2014-09-11
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Austria

Summary — Order of the Court (Eighth Chamber), 11 September 2014 1. Judicial proceedings — Action before the General Court — Application of the procedure by default — No obligation on the General Court to give judgment in default — No obligation on the General Court to hold a hearing — None (Rules of Procedure of the General Court, Art. 122) 2. Appeals — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para; Rules of Procedure of the Court of Justice, Art. 169(2)) 3. Appeals — Grounds — Challenge to the contested decision before the General Court and not the judgment it delivered — Inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(b)) 4. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Sign which is indistinguishable from the appearance of the designated goods (Council Regulation No 207/2009, Art. 7(1)(b)) 6. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for any examination to be carried out stringently and in full (Council Regulation No 207/2009) 1. It is clear from Articles 122(1) and (2) of the Rules of Procedure of the General Court that, if that Court considers that it has sufficient information to give judgment by default, if the admissibility of the application does not give rise to any doubt and if the formalities have been duly complied with, it will verify the substance of form of order sought by the applicant and give judgment, without being obliged to grant those forms of order. Moreover, Article 122 of the Rules of Procedure of the General Court does not allow the party which applied for judgment in default to request a hearing nor does it lay down an obligation on the General Court to hold one. (see para. 22) 2. See the text of the decision. (see paras 27, 28) 3. See the text of the decision. (see para. 29) 4. See the text of the decision. (see para. 43) 5. Distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark, must be assessed, first, by reference to the goods or services in respect of which registration has been sought and, second, by reference to the relevant public’s perception of the mark. However, the perception of the average consumer is not necessarily the same for trade marks consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent of the appearance of the products it denotes, since average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element, and it could therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark. First, in those circumstances, only a mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin is not devoid of any distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009. Second, that principle, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself, also applies where, the trade mark applied for is a figurative mark consisting of the two-dimensional representation of that product. In such a case, the mark likewise does not consist of a sign unrelated to the appearance of the products it covers. (see paras 47-49) 6. See the text of the decision. (see para. 57)