Judgment — ECLI:EU:T:2002:225
Date: 2002-09-25
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: Signs of which a trade mark may consist;Other marks
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Judgment 
1. Community trade mark — Definition and acquisition of the Community trade 
mark — Signs capable of constituting a trade mark — Colours or colour com­
binations — Condition — Distinctive character 
(Council Regulation No 40/94, Art. 7(l)(b)) 
II - 3715 
SUMMARY — CASE T-316/00 
2. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks devoid of any distinctive char­
acter — Signs consisting of colours or colour combinations — Distinctive char­
acter — Assessment criteria 
(Council Regulation No 40/94, Art. 7(l)(b)) 
3. Community trade mark — Definition and acquisition of the Community trade 
mark — Absolute grounds for refusal — Marks devoid of any distinctive char­
acter —· Juxtaposition of two colours represented by a green rectangle above a grey 
rectangle 
(Council Regulation No 40/94, Art. 7(1) (b)) 
1. Colours or colour combinations per se 
are capable of constituting Community 
trade marks for the purposes of Regu­
lation No 40/94 in so far as they are 
capable of distinguishing the goods or 
services of one undertaking from those 
of another. It does not, however, 
follow from the fact that signs of a 
particular category may in principle 
constitute a trade mark that all signs in 
that category necessarily possess dis­
tinctive character for the purposes of 
Article 7(l)(b) of that regulation with 
regard to a particular product or ser­
vice. 
(see paras 23-24) 
2. Whilst Article 7(l)(b) of Regulation 
No 40/94 on the Community trade 
mark, which provides that 'trade marks 
which are devoid of any distinctive 
character' are not to be registered, does 
not draw any distinction between dif­
ferent types of sign, the perception of 
the relevant section of the public is not 
necessarily the same in the case of a 
sign composed of a colour or colour 
combination per se as it is in the case of 
a word or figurative mark composed of 
a sign that bears no relation to the 
appearance of the goods that it ident­
ifies. While the public is accustomed to 
perceiving word or figurative marks as 
instantly identifying the commercial 
origin of the goods, the same is not 
necessarily true where the sign forms 
part of the look of the goods in respect 
of which registration of the sign is 
sought. 
(see para. 27) 
3. Article 7(l)(b) of Regulation No 40/94 
on the Community trade mark pro­
vides that 'trade marks which are 
devoid of any distinctive character' 
are not to be registered. A sign sought 
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VIKING-UMWELTTECHNIK v OHIM (JUXTAPOSITION OF GREEN AND GRAY) 
to be registered for gardening products, 
comprising a juxtaposition of two 
colours, represented by a green rec­
tangle above a grey rectangle, is not 
distinctive for the goods in question. 
Simply juxtaposing colours is abstract 
and imprecise in relation to the goods 
in question, and the combination of 
colours is not arranged in any particu­
lar format. The consumer will there­
fore not see the juxtaposition of green 
and grey as a sign indicating that the 
goods come from the same undertaking 
but will rather see it merely as an 
aspect of the finish of the goods in 
question, so that the sign claimed will 
not enable him to recognise it as 
distinctive when he comes to make a 
choice on the occasion of a subsequent 
purchase of those goods. 
(sec paras 33, 37-38, 40) 
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