Keywords

Summary



Keywords

1. 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 — Criteria — Positional mark

(Council Regulation No 207/2009, 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 — Application for registration of a mark consisting of a representation of a yellow curve at the bottom edge of an electronic display unit

(Council Regulation No 207/2009, Art. 7(1)(b))

Summary

1. The classification of a ‘positional mark’ as a figurative or three-dimensional mark, or as a specific category of marks, is irrelevant for the purpose of assessing its distinctive character.

Under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, trade marks which are devoid of any distinctive character are not to be registered. That distinctive character must be assessed, first, by reference to the goods or services in respect of which registration is sought and, second, by reference to the perception that the relevant public has of those goods and services. A minimum degree of distinctive character is, however, sufficient to render the absolute ground for refusal set out in Article 7(1)(b) inapplicable. The perception of the relevant public is liable to be influenced by the nature of the sign in respect of which registration is sought. Therefore, to the extent to which average consumers are not in the habit of making assumptions as to the commercial origin of goods on the basis of signs which are indistinguishable from the appearance of the goods themselves, such signs will be distinctive only if they depart significantly from the norm or customs of the sector.

The decisive factor governing the applicability of the case-law is not the classification of the sign as figurative, three-dimensional or other, but the fact that the sign is indistinguishable from the appearance of the product in question. Thus, that criterion has been applied, not only to three-dimensional marks, but also to figurative marks consisting of a two-dimensional representation of the product in question, and also to a sign consisting of a design applied to the surface of the product. Likewise, according to case-law, colours and abstract combinations thereof cannot be regarded as intrinsically distinctive save in exceptional circumstances, since these are indistinguishable from the appearance of the goods designated and are not, in principle, used as a means of identifying commercial origin.

(see paras 15, 16, 18-21)

2. A sign constituted by a representation of a yellow curve at the bottom of an electronic display unit, registration of which as a Community trade mark is sought in respect of goods falling within Classes 7 and 9 to 11 of the Nice Agreement, does not have distinctive character for the purposes of Article 7(1)(b) of Regulation No 207/2009 on the Community trade mark.

The sign applied for consists of a simple motif. Although it is brightly coloured, it does not contain any striking element that of itself attracts the attention of the relevant public, even if the relevant public can be considered to possess a high level of attentiveness. Thus, it is not unusual, in the sector in question, to include such a ‘visual indication’ of colour around the screen of the apparatus. In addition, the applicant does not assert that any particular shade of yellow appertains to the mark applied for. It must therefore be held that the mark applied for does not possess any unique, original or unusual character.

The mark in question does not have any characteristic element, nor any memorable or eye-catching features likely to confer a minimum degree of distinctive character and enabling the consumer to perceive it otherwise than as a decoration typical of goods in Classes 7 and 9 to 11.

(see paras 39, 40, 42)