Judgment of the General Court (Seventh Chamber) of 22 January 2015 — Pro-Aqua International v OHIM — Rexair (WET DUST CAN’T FLY)

(Case T‑133/13)

‛Community trade mark — Invalidity proceedings — Community word mark WET DUST CAN’T FLY — Absolute ground for refusal — Lack of distinctive character — Descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Concept (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 16, 17)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Aim — Need to preserve availability (Council Regulation No 207/2009, Art. 7(1)(c)) (see para. 18)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service — Word mark WET DUST CAN’T FLY (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 19, 29, 35)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 38)

5. 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 (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 39)

6. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Inadmissibility (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 40-42)

7. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 43)

8. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 44, 45)

9. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark WET DUST CAN’T FLY (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 49-51)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 17 December 2012 (Case R 211/2012-2), concerning invalidity proceedings between Pro-Aqua International GmbH and Rexair LLC.

Operative part

The Court:

1. Dismisses the action;