Source: EURLEX
Language: en
Format: md

Judgment of the General Court (Fifth Chamber) of 29 June 2018 –  
hoechstmass Balzer v EUIPO (Shape of a tape measure case)

(Case T‑691/17)

(EU trade mark — Application for a three-dimensional EU trade mark — Shape of a tape measure case — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 (now Article 7(1)(b) of Regulation (EU) 2017/1001))

| 1. | Judicial proceedings—Time-limit for instituting proceedings—Claim barred by lapse of time—Unforeseeable circumstances or force majeure—Meaning—Postal delay—Not included  (Rules of Procedure of the General Court, Arts 73(3) and 106(2))  (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 paras 23, 24) |

| 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 para. 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  (Council Regulation No 207/2009, Art. 7(1)(b))  (see paras 26-28) |

| 5. | 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 para. 29) |

| 6. | EU trade mark—Definition and acquisition of the EU trade mark—Assessment of the registrability of a sign—EU rules only taken into account—Decisions of national authorities not binding EU bodies  (Council Regulation No 207/2009)  (see para. 53) |

| 7. | EU trade mark—Definition and acquisition of the EU trade mark—Absolute grounds for refusal—Marks devoid of any distinctive character—Three-dimensional mark—Shape of a tape measure case  (Council Regulation No 207/2009, Art. 7(1)(b))  (see para. 57) |

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 28 July 2017 (Case R 2331/2016-4), concerning an application for registration of a three-dimensional sign consisting of the shape of a tape measure case as an EU trade mark.

Operative part

The Court:

| 1. | Dismisses the action; |

| 2. | Orders hoechstmass Balzer GmbH to pay the costs. |

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