Source: EURLEX
Language: en
Format: md

Judgment of the General Court (Eighth Chamber) of 16 May 2018 –  
Triggerball v EUIPO (Shape of a ball-like object with edges)

(Case T‑387/17)

(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a ball-like object with edges — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

| 1. | EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal—Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies—Not included  (Council Regulation No 207/2009, Art. 65)  (see para. 15) |

| 2. | EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Meaning  (Council Regulation No 207/2009, Art. 7(1)(b))  (see para. 17) |

| 3. | EU trade mark—Definition and acquisition of the EU 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 paras 18, 19, 25) |

| 4. | EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional trade marks consisting of the shape of the product itself—Distinctive character—Criteria for assessment—Shape at issue being a (variant) of the typical shapes of the type of goods concerned—Fact not sufficient to establish distinctiveness of the mark  (Council Regulation No 207/2009, Art. 7(1)(b))  (see paras 20-23) |

| 5. | EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Lack of distinctiveness—Trade mark made up of several elements—Possible for the competent authority to examine each of the elements making up the trade mark—Need to take account of the overall perception of the combination by the relevant public  (Council Regulation No 207/2009, Art. 7(1)(b))  (see para. 24) |

| 6. | EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional mark made up of the shape of a ball-like object with edges  (Council Regulation No 207/2009, Art. 7(1)(b))  (see paras 27, 29-33, 36) |

| 7. | EU 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. 7(1))  (see para. 35) |

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 20 April 2017 (Case R 376/2017-4), concerning an application for registration of a three-dimensional sign consisting of the shape of a ball-like object with edges as an EU trade mark.

Operative part

The Court:

| 1. | Dismisses the action; |

| 2. | Orders Triggerball GmbH to pay the costs. |

[Top](#document1)