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

(Case T-26/11)

‛Community trade mark — Application for a figurative Community trade mark representing a tartan pattern in black, beige, brown, dark red and grey — 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. 14)

2. Community trade mark — Procedural provisions — Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75) (see paras 15-17)

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 32-33)

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 a tartan pattern in black, beige, brown, dark red and grey (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 51-81)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 November 2010 (Case R 1317/2010-4) concerning an application for registration of a figurative sign representing a tartan pattern in black, beige, brown, dark red and grey 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 black, beige, brown, dark red and grey)

(Case T-26/11)

‛Community trade mark — Application for a figurative Community trade mark representing a tartan pattern in black, beige, brown, dark red and grey — 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. 14)

2. Community trade mark — Procedural provisions — Statement of reasons for decisions (Council Regulation No 207/2009, Art. 75) (see paras 15-17)

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 32-33)

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 a tartan pattern in black, beige, brown, dark red and grey (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 51-81)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 November 2010 (Case R 1317/2010-4) concerning an application for registration of a figurative sign representing a tartan pattern in black, beige, brown, dark red and grey as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;