Joined Cases C-473/01 P and C-474/01 P

Procter & Gamble Company

v

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

(Appeal – Community trade mark – Article 7(1)(b) of Regulation (EC) No 40/94 – Three-dimensional tablets for washing machine or dishwashers – Absolute ground for refusal to register – Distinctive character)

Summary of the Judgment

1. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks devoid of any distinctive character – Three-dimensional marks consisting of the shape of the product – Distinctive character – Criteria by reference to which such character assessed

(Council Regulation No 40/94, Art. 7(1)( b))

2. Appeals – Pleas in law – Review by the Court of Justice of the assessment of matters of fact submitted to the Court of First Instance – Excluded unless the sense of the evidence has been distorted – Application to the present cases of the criteria by reference to which the distinctive character of Community trade marks is assessed

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

1. The criteria for assessing the distinctive character, within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, of three-dimensional shape-of-products marks are no different from those applicable to other categories of trade mark. None the less, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same in relation to a three-dimensional mark consisting of the shape and colours of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent from the appearance of the products it denotes. Average consumers are not in the habit of making assumptions about the origin of products on the basis of their shape or the shape of their packaging in the absence of any graphic or word element and it could therefore prove more difficult to establish distinctiveness in relation to such a three-dimensional mark than in relation to a word or figurative mark.

In those circumstances, the more closely the shape for which registration is sought resembles the shape most likely to be taken by the product in question, the greater the likelihood of the shape being devoid of any distinctive character. Only a trade mark which departs significantly from the norm or customs of the sector and thereby fulfils its essential function of indicating origin, is not devoid of any distinctive character for the purposes of that provision.

(see paras 36-37)

2. The Court of First Instance has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence produced to it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

The actual application to the present cases of the criteria for assessing the distinctive character of Community trade marks, for the purposes of Article 7(1)(b) of Regulation No 40/94, involves findings of a factual nature and, more specifically, the finding that, as regards everyday consumer products, the level of attention paid by the average consumer to the shape and pattern of washing-machine and dishwasher tablets is not high.

(see paras 39, 53)