Judgment of the General Court (Sixth Chamber) of 16 July 2014 — Langguth Erben v OHIM (Shape of an alcoholic beverage bottle)

(Case T‑66/13)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of an alcoholic beverage bottle — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) and (2), Article 75, Article 76(1) and Article 77 of Regulation (EC) No 207/2009’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 18, 19)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of the product — Shape of an alcoholic beverage bottle (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 35, 40-43, 51, 57)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 36-39)

4. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (Council Regulation No 207/2009) (see para. 53)

5. Community trade mark — Definition and acquisition of the Community trade mark — Prior registration of the trade mark in certain Member States — Effect (see para. 63)

6. 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 paras 72, 73)

7. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Registration of a new trade mark — Absolute grounds for refusal — Burden of proof (Council Regulation No 207/2009, Art. 76(1)) (see para. 74)

8. Community trade mark — Conversion into national trade mark application — Application with a view to initiating the national procedure — Obligation to carry out a detailed analysis of the distinctive character of the sign in all Member States — None (Council Regulation No 207/2009, Arts 75 and 112(2)(b)) (see paras 79-82)

9. Community trade mark — Procedural provisions — Recourse to the oral procedure — Discretion of the Office (Council Regulation No 207/2009, Art. 77(1)) (see para. 88)

10. Actions for annulment — Grounds — Misuse of powers — Concept (Art. 263 TFEU) (see para. 94)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 22 November 2012 (Case R 129/2012-1), concerning an application for registration of a three-dimensional sign comprising the shape of an alcoholic beverage bottle as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;