Judgment — ECLI:EU:C:2012:460
Date: 2012-07-12
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Summary of the Judgment 1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Meaning (Council Regulation No 40/94, Art. 7(1)(b)) 2. 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 (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 – Marks devoid of any distinctive character – Marks consisting in advertising slogans – Distinctive character – Application of specific assessment criteria – Not permissible (Council Regulation No 40/94, Art. 7(1)(b)) 4. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Marks consisting in advertising slogans – Slogan of an imaginative nature (Council Regulation No 40/94, Art. 7(1)(b)) 5. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character – Marks consisting in advertising slogans – Promotional formula of a laudatory nature (Council Regulation No 40/94, Art. 7(1)(b)) 6. Appeals – Pleas in law – 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.) 7. Community trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope – Obligation to prove matters within common knowledge – None – Dispute before the General Court – Review by the Court of Justice of the assessment by the General Court of whether matters were within common knowledge – Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 40/94, Art. 76) 1. See the text of the decision. (see para. 23) 2. See the text of the decision. (see para. 24) 3. As regards marks made up of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by those marks, registration of such marks is not excluded as such by virtue of such use. In order to assess the distinctive character of such marks, it is inappropriate to apply to slogans criteria which are stricter than those applicable to other types of sign. However, according to the case-law of the Court, whilst the criteria for assessing distinctiveness are the same for the various categories of trade mark, it may become apparent, when applying those criteria, that the relevant public’s perception is not necessarily the same in relation to each of those categories and that, therefore, it may prove more difficult to establish the distinctiveness of the marks in certain categories than of those in other categories. While the Court has not excluded the possibility that that case‑law may, in certain circumstances, be relevant to word marks consisting of advertising slogans, it has however stated that difficulties in establishing distinctiveness which may be associated with such marks because of their very nature – difficulties which it is legitimate to take into account – do not justify laying down specific criteria supplementing or derogating from the criterion of distinctiveness as interpreted in the case-law. (see paras 25-27) 4. See the text of the decision. (see para. 28) 5. While it is true that a mark possesses distinctive character only in so far as it serves to identify the goods or services in respect of which registration is applied for as originating from a particular undertaking, the mere fact that a mark is perceived by the relevant public as a promotional formula and that, because of its laudatory nature, it could in principle be used by other undertakings, is not sufficient, in itself, to support the conclusion that that mark is devoid of distinctive character. The laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. Thus, such a mark can be perceived by the relevant public both as a promotional formula and as an indication of the commercial origin of goods or services. It follows that, in so far as the public perceives the mark as an indication of that origin, the fact that the mark is at the same time understood – perhaps even primarily understood – as a promotional formula has no bearing on its distinctive character. (see paras 29, 30) 6. See the text of the decision. (see paras 52, 53) 7. See the text of the decision. (see para. 57)