Judgment of the General Court (Fourth Chamber) of 1 June 2016 —

Grupo Bimbo v EUIPO (Shape of a bar with four circles)

(Case T‑240/15)

‛European Union trade mark — Application for three-dimensional European Union trade mark — Shape of a bar with four circles — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Rights of the defence — Article 75 of Regulation No 207/2009 — Obligation to state reasons’

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 12)

2. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal (Council Regulation No 207/2009, Art. 65(1) (see para. 14)

3. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Review of the lawfulness of decisions of the Boards of Appeal — Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies — Not included (Council Regulation No 207/2009, Art. 65(2)) (see para. 15)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18-20)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment — Shape in question being a ‘variant’ of the habitual shapes of the type of products concerned — Fact not sufficient to establish distinctiveness of the mark (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 21-24, 40)

6. EU trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — Absolute grounds for refusal — Burden of proof (Council Regulation No 207/2009, Arts 7(1), and 76(1)) (see para. 25)

7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade mark constituted by the shape of a bar with four circles (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 28, 29, 31, 41)

8. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (see para. 51)

9. EU trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Regulation No 207/2009, Art. 75, second sentence) (see paras 60-62)

10. EU trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 65, 66)

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 2 March 2015 (Case R 1602/2014-1) concerning an application for registration of a three-dimensional sign consisting of the shape of a bar with four circles as a European Union trade mark.

Operative part

The Court:

1. Dismisses the action;