Judgment of the General Court (Sixth Chamber) of 9 September 2020 –

Glaxo Group v EUIPO (Shade of the colour purple)

(Case T‑187/19)

(EU trade mark – Application for an EU trade mark consisting of a shade of the colour purple – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001 – Lack of distinctive character acquired through use – Article 7(3) of Regulation 2017/1001)

1. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Meaning – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 28-30)

2. EU trade mark – Definition and acquisition of the EU trade mark – Signs of which a trade mark may consist – Colours or combinations of colours – Condition – Distinctive character (European Parliament and Council Regulation 2017/1001, Arts 4 and 7(1)(b)) (see paras 31-36)

3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Marks constituted by a colour or combination of colours (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 38, 39, 51)

4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Marks constituted by a colour or combination of colours – Mark consisting of a shade of the colour purple (European Parliament and Council Regulation 2017/1001, Art. 7(1)(b)) (see paras 50, 52-55)

5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Probative value of the evidence – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(3)) (see paras 68, 92, 94-97)

6. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Trade mark devoid of distinctive character throughout the EU – Acquisition by use also throughout the EU (European Parliament and Council Regulation 2017/1001, Art. 7(3)) (see paras 80-86)

7. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character not acquired through use – Mark consisting of a shade of the colour purple (European Parliament and Council Regulation 2017/1001, Art. 7(3)) (see paras 88, 90, 105-109)

8. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 7(3)) (see para. 93)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 15 January 2019 (Case R 1870/2017-1), concerning an application for registration of a sign consisting of a shade of the colour purple as an EU trade mark.

Operative part

The Court:

1. Dismisses the action;