CELEX: 62007TJ0351
Language: en
Date: 2008-12-17
Title: Judgment of the Court of First Instance (Second Chamber) of 17 December 2008. # Somm Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Community trade mark - Application for Community tri-dimensional mark - Shelter for shade - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character acquired by use - Article 7(3) of Regulation No 40/94. # Case T-351/07.

Judgment of the Court of First Instance (Second Chamber) of 17 December 2008 – Somm v OHIM (Shelter for shade)
      (Case T-351/07)
      Community trade mark – Application for Community tri-dimensional mark – Shelter for shade – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character acquired by use – Article 7(3) of Regulation No 40/94
      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 26, 30)
      Re: 
      
         
               ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an
                  application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.
               
            Information relating to the case
      
               Applicant for the Community trade mark:
            
            
               Somm Srl
            
         
               Community trade mark sought:
            
            
               Three-dimensional trade mark described as follows: (‘Three-dimensional whole constituted by a large number of tubular posts
                  of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having
                  a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top,
                  a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines
                  of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’); for goods
                  in Classes 6 and 19 – Application No 4837746
               
            
         
               Decision of the examiner:
            
            
               Registration refused
            
         
               Decision of the Board of Appeal:
            
            
               Appeal dismissed
            
         
      Operative part
      The Court: 
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the action;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Somm Srl to pay the costs.