Case T-30/00

Henkel KGaA

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community trade mark — Tablet for washing machines or dishwashers — Figurative mark — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94’

Judgment of the Court of First Instance (Second Chamber), 19 September 2001 II-2666

Summary of the Judgment

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Figurative mark — Representation, in perspective, of a rectangular tablet with rounded corners, comprising two layers, one white and the other red, for washing machine and dishwasher products

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Signs devoid of any distinctive character — Features of a figurative mark consisting of a representation of the product suggesting certain of the product's qualities without being descriptive — Effect on the assessment of distinctive character

Article 7(1)(b) of Regulation No 40/94 on the Community trade mark does not distinguish between different categories of trade marks. The criteria for assessing the distinctive character of figurative marks consisting of a representation of the product itself are therefore no different from those applicable to other categories of trade marks. Nevertheless, when those criteria are applied, account must be taken of the fact that the perception of the relevant section of the public is not necessarily the same in relation to a figurative mark consisting of a faithful representation of the product itself as it is in relation to a word mark or a figurative or three-dimensional mark not faithfully representing the product. Whilst the public is used to recognising the latter marks instantly as signs identifying the product, this is not necessarily so where the sign is indistinguishable from the appearance of the product itself. It follows that an assessment of distinctive character cannot result in different outcomes for a three-dimensional mark consisting of the design of the product itself and for a figurative mark consisting of a faithful representation of the same product. (see paras 48-49)

It does not follow from the fact that the features of a figurative mark consisting of a faithful representation of the product itself suggest certain of the product's qualities without, however, being capable of being considered a descriptive indication in terms of Article 7(1)(c) of Regulation No 40/94 on the Community trade mark that those features necessarily confer a distinctive character on the mark. Where the target sector of the public sees the presence of those features as a suggestion that the product has certain qualities, and not as an indication of its origin, there is no distinctive character. (see para. 54)

According to 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. As regards the application for registration for washing machine or dishwasher products of a figurative trade mark which is a representation, seen in perspective, of a rectangular tablet with slightly rounded corners, comprising two layers, one of which is white and the other of which is red, the tablet is devoid of any distinctive character. Given the overall impression created by the shape of the tablet represented by the image and the arrangement of its colours, the mark applied for, which reproduces a combination of obvious features typical of the product concerned, will not enable consumers, in the absence of any additional features, to distinguish the products concerned from those having a different trade origin when they come to select a product for purchase. (see paras 57, 60, 63)