Judgment of the General Court (Third Chamber) of 19 September 2012 — Fraas v OHIM (Tartan pattern in dark grey, light grey, beige and dark red)

(Case T-328/10)

‛Community trade mark — Application for a figurative Community trade mark representing a tartan pattern in dark grey, light grey, beige and dark red — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b), Article 75 and Article 76(1) of Regulation (EC) No 207/2009’

1. Community 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 para. 18)

2. Community trade mark — Procedural provisions — Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75) (see paras 19-21)

3. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — No obligation to prove matters within common knowledge (Council Regulation No 207/2009, Art. 76(1)) (see paras 31-32)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing Tartan pattern in dark grey, light grey, beige and dark red (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 50-83)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 June 2010 (Case R 190/2010-4) concerning an application for registration of a figurative sign representing a tartan pattern in dark grey, light grey, beige and dark red as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;

2. Orders V. Fraas GmbH to pay the costs.

Judgment of the General Court (Third Chamber) of 19 September 2012 — Fraas v OHIM (Tartan pattern in dark grey, light grey, beige and dark red)

(Case T-328/10)

‛Community trade mark — Application for a figurative Community trade mark representing a tartan pattern in dark grey, light grey, beige and dark red — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b), Article 75 and Article 76(1) of Regulation (EC) No 207/2009’

1. Community 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 para. 18)

2. Community trade mark — Procedural provisions — Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75) (see paras 19-21)

3. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — No obligation to prove matters within common knowledge (Council Regulation No 207/2009, Art. 76(1)) (see paras 31-32)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Figurative mark representing Tartan pattern in dark grey, light grey, beige and dark red (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 50-83)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 June 2010 (Case R 190/2010-4) concerning an application for registration of a figurative sign representing a tartan pattern in dark grey, light grey, beige and dark red as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;