Judgment of the General Court (First Chamber) of 10 May 2016 —

August Storck v EUIPO (Representation of a white and blue square-shaped packaging)

(Case T‑806/14)

‛EU trade mark — International registration designating the European Union — Figurative mark representing white and blue square-shaped packaging — Absolute ground for refusal — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Not included (Rules of Procedure of the General Court (1991), Art. 135(4); Council Regulation No 207/2009, Art. 65) (see paras 14, 15)

2. 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 (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 27-30)

3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark consisting of the two-dimensional representation of a product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 31)

4. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria — Perception of the trade mark by the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 33, 36, 38)

5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing a white and blue square-shaped packaging (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 35, 39, 43-45)

6. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Identification of the trade mark — Image of the trade mark in the application for registration (Council Regulation No 207/2009, Art. 7) (see para. 50)

7. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Examination of the sign by the competent authority — Account taken of all the relevant facts and circumstances, including the actual perception of the sign by consumers and excluding the perception arising from a use of the sign (Council Regulation No 207/2009, Art. 7(1)(b) and (3)) (see para. 52)

8. EU trade mark — Definition and acquisition of the EU trade mark — Prior registration of the trade mark in certain Member States — Effect (Council Regulation No 207/2009, Art. 7) (see para. 55)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 8 September 2014 (Case R 644/2014-5), concerning the international registration designating the European Union of a figurative mark representing white and blue square-shaped packaging.

Operative part

The Court:

1. Dismisses the action;