CELEX: 62001CJ0468
Language: en
Date: 2004-04-29
Title: Judgment of the Court (Sixth Chamber) of 29 April 2004. # 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 machines or dishwashers - Absolute ground for refusal to register - Distinctive character. # Joined cases C-468/01 P to C-472/01 P.

Joined Cases C-468/01 P to C-472/01 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 machines 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 colours of washing-machine and dishwasher tablets is not high.
      
      (see paras 39, 53)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)29 April 2004(1)
         
         
               (Appeal  –  Community trade mark  –  Article 7(1)(b) of Regulation (EC) No 40/94  –  Three-dimensional tablets for washing machines or dishwashers  –  Absolute ground for refusal to register  –  Distinctive character)
               
             In Joined Cases C-468/01 P to C-472/01 P,
            
            
            Procter & Gamble Company, established in Cincinnati (United States), represented by C. van Nispen and G. Kuipers, advocaten, 
            
            
            appellant,
            
             FIVE APPEALS against the judgments of the Court of First Instance of the European Communities (Second Chamber) of 19 September
            2001 in Case T-117/00 Procter & Gamble  v OHIM (Square tablet, white and pale green) [2001] ECR II-2723, Case T-118/00 Procter & Gamble  v OHIM (Square tablet, white with green speckles and pale green) [2001] ECR II-2731, Case T-119/00 Procter & Gamble  v OHIM (Square tablet, white with yellow and blue speckles) [2001] ECR II-2761, Case T-120/00 Procter & Gamble  v OHIM (Square tablet, white with blue speckles) [2001] ECR II-2769, and Case T-121/00 Procter & Gamble  v OHIM (Square tablet, white with green and blue speckles) [2001] ECR II-2777, seeking to have those judgments set aside,
            
             the other party to the proceedings being:
            Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),  represented by D. Schennen and C. Røhl Søberg, acting as Agents,
            defendant at first instance,
            
            THE COURT (Sixth Chamber),,
            
             composed of V. Skouris, acting as the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen
            and F. Macken (Rapporteur), Judges,  
            
             Advocate General: D. Ruiz-Jarabo Colomer, Registrar:  M. Múgica Arzamendi, Principal Administrator,
            
            
             after hearing oral argument from the parties at the hearing on 2 October 2003, at which Procter & Gamble Company was represented
            by C. van Nispen and G. Kuipers and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) by
            D. Schennen and A. von Mühlendahl, acting as Agent, 
            
            after hearing the Opinion of the Advocate General at the sitting on 6 November 2003,
         gives the following
         
         
         Judgment
         1
            
          By applications lodged at the Court Registry on 6 December 2001, Procter & Gamble Company (‘Procter & Gamble’) appealed pursuant
         to Article 49 of the EC Statute of the Court of Justice against the judgments of the Court of First Instance of 19 September
         2001 in Case T-117/00 Procter & Gamble v OHIM (Square tablet, white and pale green) [2001] ECR II-2723 (‘Case T-117/00’), Case T‑118/00 Procter & Gamble  v OHIM (Square tablet, white with green speckles and pale green) [2001] ECR II-2731 (‘Case T-118/00’), Case T-119/00 Procter & Gamble  v OHIM (Square tablet, white with yellow and blue speckles) [2001] ECR II-2761(‘Case T-119/00’), Case T‑120/00 Procter & Gamble  v OHIM (Square tablet, white with blue speckles) [2001] ECR II-2769 (‘Case T-120/00’), and Case T-121/00 Procter & Gamble  v OHIM (Square tablet, white with green and blue speckles) [2001] ECR II-2777 (‘Case T-121/00’) (hereinafter together referred to as ‘the judgments under appeal’), by which the Court
         of First Instance dismissed its actions for annulment of the decisions of the Third Board of Appeal of the Office for Harmonisation
         in the Internal Market (Trade Marks and Designs) (‘OHIM’) of 29 February, 3 and 8 March 2000 (Cases R-509/1999-1, R-516/1999‑1,
         R‑519/1999‑1, R‑520/1999-1 and R-529/1999-1), which had rejected its appeals against the refusal to register as Community
         trade marks three-dimensional tablets for washing machines or dishwashers (‘the contested decisions’).
         
         
         
         2
            
          By order of the President of the Court of Justice of 20 March 2003, Cases C‑468/01 P to C-472/01 P were joined for the purposes
         of the oral procedure and the judgment.
         
         
            
               Legal background
            
         
         3
            
          Article 4 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) provides:
         ‘A Community trade mark may consist of any signs capable of being represented graphically, particularly words, including personal
         names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing
         the goods or services of one undertaking from those of other undertakings.’
         
         
         
         4
            
          Article 7 of the regulation provides:
         
         ‘1.
            The following shall not be registered:
         
         
         (a)
            signs which do not conform to the requirements of Article 4; 
         
         
         (b)
            trade marks which are devoid of any distinctive character; 
         
         
         (c)
            trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity,
               intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other
               characteristics of the goods or service; trade marks which consist exclusively of signs or indications which have become customary
               in the current language or in the bona fide and established practices of the trade;
            
         
         
         …
         
         
         3.
            Paragraph 1(b), (c) and (d) shall not apply if the trade mark has become distinctive in relation to the goods or services
               for which registration is requested in consequence of the use which has been made of it.’
            
         
         
         Facts of the case
         
         5
            
          On 13 October 1998 Procter & Gamble applied to OHIM for registration as Community trade marks of the following three-dimensional
         shapes, which were presented as square tablets with slightly rounded edges and corners:
         
         
         
          
         –
            a square tablet consisting of two layers, one white and the other pale green (Case C-468/01 P);
         
         
         
         
          
         –
            a square tablet consisting of two layers, one white with green speckles and the other pale green (Case C-469/01 P);
         
         
         
         
          
         –
            a square white tablet with yellow and blue speckles (Case C‑470/01 P);
         
         
         
         
          
         –
            a square white tablet with blue speckles (Case C-471/01 P), and
         
         
         
         
          
         –
            a square white tablet with green and blue speckles (Case C‑472/01 P).
         
         
         
         
         
         6
            
          The products in respect of which registration is sought are in class 3 of the Nice Agreement concerning the International
         Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended,
         and correspond to the description: ‘washing and bleaching preparations and other substances for laundry use; cleaning, polishing,
         scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps’.
         
         
         
         7
            
          By decisions of 17 June 1999, the OHIM examiner refused the applications on the ground that the trade marks for which registration
         had been applied were devoid of distinctive character and for that reason could not be registered on account of Article 7(1)(b)
         of Regulation No 40/94.
         
         
         
         8
            
          By the contested decisions, the Third Board of Appeal of OHIM upheld the examiner’s decisions finding that each of the marks
         for which registration was sought was devoid of any distinctive character for the purposes of that provision.
         
         
         
         9
            
          The Board of Appeal pointed out, first, that it is clear from Article 4 of Regulation No 40/94 that the shape of a product
         may be registered as a Community trade mark, provided that the shape displays certain features that are sufficiently unusual
         and arbitrary to enable the relevant consumers to recognise the product, purely on the basis of its appearance, as emanating
         from a specific undertaking. Given the advantages offered by products put up in tablet form for washing laundry and dishes,
         the Board of Appeal went on to point out that Procter & Gamble’s competitors must also remain free to make such products using
         the simplest geometrical shapes. The basic geometric shapes (square, round, triangular or rectangular) were the most obvious
         shapes for such tablets and there was nothing arbitrary or fanciful about selecting a square tablet for the manufacture of
         solid detergents. Finally, the Board of Appeal held that the colours of the trade marks concerned did not confer distinctive
         character on them.
         
         Procedure before the Court of First Instance and the judgments under appeal
         
         10
            
          By applications lodged at the Registry of the Court of First Instance on 3 May 2000, Procter & Gamble brought five actions
         for annulment of the contested decisions.
         
         
         
         11
            
          In Case T-118/00, the Court of First Instance held that the OHIM Board of Appeal had rightly concluded that the three-dimensional
         trade mark for which registration is sought was devoid of any distinctive character within the meaning of Article 7(1)(b)
         of Regulation No 40/94, and did so on the following grounds.
         
         ‘52
            It is clear from Article 4 of Regulation No 40/94 that both a product’s shape and its colours fall among the signs which may
               constitute a Community trade mark. However, the fact that a category of signs is, in general, capable of constituting a trade
               mark does not mean that signs belonging to that category necessarily have distinctive character for the purposes of Article 7(1)(b)
               of Regulation No 40/94 in relation to a specific product or service. 
            
         
         
         53
            According to Article 7(1)(b) of Regulation No 40/94, “trade marks which are devoid of any distinctive character” are not to
               be registered. A mark which enables the goods or services in respect of which registration of the mark has been sought to
               be distinguished as to their origin is to be considered as having distinctive character. It is not necessary for that purpose
               for the mark to convey exact information about the identity of the manufacturer of the product or the supplier of the services.
               It is sufficient that the mark enables members of the public concerned to distinguish the product or service that it designates
               from those which have a different trade origin and to conclude that all the products or services that it designates have been
               manufactured, marketed or supplied under the control of the owner of the mark and that the owner is responsible for their
               quality (see, to that effect, Case C-39/97 Canon [1998] ECR I-5507, paragraph 28). 
            
         
         
         54
            It is clear from the wording of Article 7(1)(b) of Regulation No 40/94 that a minimum degree of distinctive character is sufficient
               to render the ground for refusal set out in that article inapplicable. It is therefore appropriate to ascertain – in an a priori  examination not involving any consideration of the use made of the sign within the meaning of Article 7(3) of Regulation No 40/94
               – whether the mark applied for will enable the members of the public targeted to distinguish the products concerned from those
               having a different trade origin when they come to select a product for purchase.
            
         
         
         55
            Article 7(1)(b) of Regulation No 40/94 does not distinguish between different categories of trade marks. The criteria for
               assessing the distinctive character of three-dimensional trade marks consisting of the shape of the product itself are therefore
               no different from those applicable to other categories of trade marks. 
            
         
         
         56
            Nevertheless, when those criteria are applied, account must be taken of the fact that the perception of the relevant section
               of the public is not necessarily the same in relation to a three-dimensional mark consisting of the shape and the colours
               of the product itself as it is in relation to a word mark, a figurative mark or a three-dimensional mark not consisting of
               the shape of the product. Whilst the public is used to recognising the latter marks instantly as signs identifying the product,
               this is not necessarily so where the sign is indistinguishable from the appearance of the product itself. 
            
         
         
         57
            It is appropriate to point out that the products in respect of which the trade mark was sought in the present case are widely
               used consumer goods. The public concerned, in the case of these products, is all consumers. Therefore, in any assessment of
               the distinctive character of the mark for which registration is sought, account must be taken of the presumed expectations
               of an average consumer who is reasonably well-informed and reasonably observant and circumspect (see, by analogy, Case C-210/96
               Gut Springenheide and Tusky [1998] ECR I-4657, paragraphs 30 to 32). 
            
         
         
         58
            The way in which the public concerned perceives a trade mark is influenced by the average consumer’s level of attention, which
               is likely to vary according to the category of goods or services in question (see Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26). The level of attention given by the average consumer to the shape and colours of washing
               machine and dishwasher tablets, being everyday consumer goods, is not high. 
            
         
         
         59
            In order to ascertain whether the combination of the shape of the tablet at issue and the arrangement of its colours may be
               perceived by members of the public as an indication of origin, the overall impression produced by that combination must be
               analysed (see, by analogy, Case C-251/95 SABEL [1997] ECR I-6191, paragraph 23). That is not incompatible with an examination of each of the product’s individual features
               in turn. 
            
         
         
         60
            The three-dimensional shape for which registration has been sought, namely a square tablet, is one of the basic geometrical
               shapes and is an obvious one for a product intended for use in washing machines or dishwashers. The slightly rounded corners
               of the tablet are dictated by practical considerations and are not likely to be perceived by the average consumer as a distinctive
               feature of the shape claimed, capable of distinguishing it from other washing machine or dishwasher tablets. 
            
         
         
         61
            As to the tablet’s two layers, one of which is white with green speckles and the other green, the public concerned is used
               to seeing different colour features in detergent preparations. … The coloured particles thus suggest certain qualities, although
               that does not mean that they can be regarded as a descriptive indication in terms of Article 7(1)(c) of Regulation No 40/94.
               However, it does not follow from the fact that that ground for refusal is inapplicable that the coloured elements necessarily
               confer a distinctive character on the mark applied for. Where, as in the present case, the target sector of the public sees
               the presence of coloured elements as a suggestion that the product has certain qualities, and not as an indication of its
               origin, there is no distinctive character. The fact that consumers may nevertheless get into the habit of recognising the
               product from its colours is not enough, on its own, to preclude the ground for refusal based on Article 7(1)(b) of Regulation
               No 40/94. Such a development in the public’s perception of the sign, if proved, may be taken into account only for the purposes
               of Article 7(3) of Regulation No 40/94. 
            
         
         …
         
         63
            Second, the Board of Appeal’s finding that the presence of a coloured layer and speckles is not sufficient for the tablet’s
               appearance to be perceived as indicative of the product’s origin is justified. Where various ingredients are to be combined
               in a washing machine or dishwashing product in tablet form, adding speckles or layers is one of the most obvious solutions.
               
            
         
         
         64
            As regards the use of the colour green, it must be observed that the use of basic colours, such as blue or green, is commonplace
               and is even typical of detergents. The use of other basic colours, such as red or yellow, is one of the most obvious variations
               on the typical design of these products. The same is true of the various shades of those colours. For that reason, the applicant’s
               argument that the mark applied for is distinctive because one of the layers of the tablet is “pale green” must be dismissed
            
         
         
         65
            It follows that the three-dimensional mark applied for consists of a combination of obvious features typical of the product
               concerned. 
            
         
         
         66
            It should be added that it is possible to obtain different combinations of those features by varying the basic geometric shapes
               and by adding to the product’s basic colour another basic colour either as a layer in the tablet or as speckles. The ensuing
               differences in the appearance of the various tablets are not sufficient to enable each of those tablets to function as an
               indication of the product’s origin, inasmuch as those differences are, as in the present case, obvious variations on the product’s
               basic shapes. 
            
         
         
         67
            Given the overall impression created by the shape of the tablet in question and the arrangement of its colours, the mark applied
               for does not enable consumers to distinguish the products concerned from those having a different trade origin when they come
               to select a product for purchase. 
            
         
         
         68
            It should be added that the inability of the mark applied for to indicate, a priori and irrespective of the use made of it within the meaning of Article 7(3) of Regulation No 40/94, the product’s origin is
               not affected by how many similar tablets are already on the market. Consequently, it is not necessary to decide here whether
               the distinctive character of the mark should be assessed by reference to the date on which the application for registration
               is filed or the date of actual registration.
            
         
         
         …
         
         
         73
            As regards the applicant’s arguments concerning the Board of Appeal’s consideration of the need to keep the shape and colours
               of the tablet at issue available, it must be observed that the absolute grounds for refusal set out in Article 7(1)(b) to
               (e) of Regulation No 40/94 address the concern of the Community legislature to prevent the grant to one operator alone of
               exclusive rights which could hinder competition on the market for the goods or services concerned (see, as regards the ground
               of refusal relating to the descriptive nature of the sign, the judgment of the Court of Justice in Joined Cases C-108/97 and
               C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 25). However, the interest that competitors of an applicant for a three-dimensional mark consisting
               of the product’s design may have in being able freely to choose shapes and colours for their own products is not in itself
               a ground for refusing registration of such a mark, nor a criterion sufficient in itself for the assessment of the mark’s distinctive
               character. Article 7(1)(b) of Regulation No 40/94, in excluding the registration of signs devoid of any distinctive character,
               protects any interest there may be in keeping available various alternatives for a product’s design only to the extent to
               which the design of the product in respect of which registration is sought is not capable, a priori and irrespective of the use made of it within the meaning of Article 7(3) of Regulation No 40/94, of functioning as a trade
               mark, that is to say, of enabling the public concerned to distinguish the product concerned from those having a different
               trade origin. 
            
         
         
         74
            Although the Board of Appeal gave considerable weight, in the contested decision, to considerations relating to the interest
               in preventing trade mark law from giving rise to a monopoly on a product, it does not, however, follow that in this case the
               Board failed to have due regard to the criteria applicable in assessing the distinctiveness of the mark applied for. In paragraph
               11 of the contested decision, the Board of Appeal states that a product’s shape may be registered as a Community trade mark
               “provided that the shape displays certain features that are sufficiently unusual and arbitrary to enable the relevant consumers
               to recognise the product, purely on the basis of its appearance, as emanating from a specific undertaking”. Thus it applied
               in substance a criterion consonant with the principles set out above.’
            
         
         
         
         
         12
            
          The Court of First Instance reached the same conclusion in the other four judgments under appeal. Paragraphs 51 to 73 of the
         judgment in Case T‑117/00 are couched in essentially the same terms as paragraphs 52 to 74 of the judgment in Case T‑118/00,
         which are set out in the preceding paragraph. Likewise, paragraphs 51 to 71 of the judgments in Cases T-119/00 to T-121/00
         are couched in essentially the same terms as paragraphs 52 to 61 and 64 to 74 of the judgment in Case T-118/00.
         
         
         
         13
            
          Therefore, by the judgments under appeal the Court of First Instance dismissed the actions brought by Procter & Gamble against
         the contested decisions.
         
         The appeals
         
         14
            
          In its appeals Procter & Gamble claims that the judgments under appeal should be set aside and that OHIM should be ordered
         to pay the costs.
         
         
         
         15
            
          OHIM contends that the appeals should be dismissed and that Procter & Gamble should be ordered to pay the costs.
         
         
         
         16
            
          In support of its appeals, Procter & Gamble maintains that the Court of First Instance made an error of law in its interpretation
         of Article 7(1)(b) of Regulation No 40/94. That single plea in law is subdivided, in essence, into five parts relating to:
         
         
         
          
         –
            the distinctive character of the trade marks for which registration is sought;
         
         
         
         
          
         –
            the need to consider the trade mark as a whole;
         
         
         
         
          
         –
            the assessment of the consumer’s level of attention;
         
         
         
         
          
         –
            the date by reference to which distinctive character of the marks concerned should be assessed; and
         
         
         
         
          
         –
            the criterion concerning use of a trade mark.
         
         
         
         
         
         17
            
          OHIM contends that in the judgments under appeal the Court of First Instance did not make an error of law in its interpretation
         and application of Article 7(1)(b) of Regulation No 40/94.
         
         The first part of the plea: the distinctive character of a trade mark Arguments of the parties
         
         
         18
            
          By the first part of its plea, Procter & Gamble submits that the question whether the geometrical shape of the product is
         an obvious one is not relevant. Nor is it relevant whether the slightly rounded corners of the tablets in question are likely
         to be perceived by the average consumer as a distinctive feature of the shape for which registration as a trade mark is sought,
         capable of distinguishing them from other washing machine or dishwasher tablets. The right question is whether the shape of
         the tablets, their slightly rounded corners, the colours used and the pattern (speckles or layers) were at the material time
         already part of the usual get-up of tablets on the market and, if they were not, whether the difference was perceptible, rendering
         it apt to confer distinctive character on the marks.
         
         
         
         19
            
          As regards, more specifically, the coloured features of the tablets concerned, Procter & Gamble claims that even if the colours,
         taken individually, do not give an indication of the tablets’ origin, they are part of the overall get-up and contribute to
         the distinctive character of the marks. Furthermore, contrary to the finding of the Court of First Instance, combinations
         of basic colours and the various shades thereof can constitute a valid trade mark for a whole category of products (such as
         detergents).
         
         
         
         20
            
          The Court of First Instance held that the inability of the trade marks for which registration is sought to indicate the product’s
         origin was not affected by how many similar tablets were already on the market. Procter & Gamble submits, however, that if
         there were no similar tablets on the market at the material time, the get-ups of the tablets concerned were perceptibly different
         and were therefore distinctive.
         
         
         
         21
            
          OHIM contends that the Court of First Instance correctly applied the criteria in Article 7(1)(b) of Regulation No 40/94 for
         assessing whether a trade mark is distinctive, both as regards the relevant public and as regards the products in question,
         since distinctive character must be assessed by reference to the specific nature of the product. The Court of First Instance
         also examined each mark as a whole, with due regard to each of its components, its function and the way in which it would
         be perceived by the relevant consumers. Furthermore, OHIM submits that the Court of First Instance rightly refused to take
         into account whether Procter & Gamble, or its competitors, actually used the same or similar washing machine or dishwasher
         tablets at the date on which the trade-mark applications were filed.
         
         
         
         22
            
          As regards distinctive character, OHIM maintains that a trade mark has distinctive character if it allows the products or
         services claimed to be distinguished as to their trade origin and not as to their properties or characteristics. That interpretation
         of distinctiveness, which was adopted by the Court of First Instance, is the only interpretation which is compatible both
         with the wording of Article 7(1)(b) of Regulation No 40/94 and with the meaning and function of a trade mark.
         
         
         
         23
            
          For OHIM, the Court of First Instance’s finding that the perception of the relevant public is not necessarily the same in
         relation to a three-dimensional trade mark consisting of the shape of the product itself as it is in relation to a word mark
         is of particular importance in this instance. Whilst the public is used to recognising word marks instantly as signs identifying
         the product, the same is not necessarily true where the sign is indistinguishable from the appearance of the product itself.
         
         
         
         24
            
          The mere shape of the product, in the absence of other elements which typically are used as signs – such as engraved words
         – will not, as a general rule, be perceived by the average consumer from the outset as being a trade mark, unless the shape
         has some striking feature. It is therefore necessary to define what the striking feature is which confers distinctiveness
         on the shape of a product, and to do so by reference to the functions performed by trade marks. A positive definition could
         be that the shape must be sufficiently fanciful, arbitrary or unusual. A negative definition would be that commonplace, obvious
         or unremarkable shapes and/or combinations of shapes and colours are devoid of any distinctive character.
         
         
         
         25
            
          In this instance, the overall impression given by the tablets at issue is, in each of the cases culminating in the judgments
         under appeal, of a non-distinctive sign. None of these tablets possesses distinctive features which would allow an average
         consumer to associate it with a particular manufacturer, unless there were massive advertising and/or use, in other words
         unless Article 7(3) of Regulation No 40/94 applied.
         
         
         
         26
            
          The test proposed by Procter & Gamble – by virtue of which it is necessary, first, to ascertain what is the usual get-up of
         the relevant product on the market and, second, to determine whether, from the consumer’s point of view, the shape of the
         trade mark for which registration is sought is perceptibly different – means in effect that a three-dimensional mark should
         be registered if it meets just one condition, namely that it is different from any other shape, which is contrary to Article
         7(1)(b) of Regulation No 40/94.
         
         
         
         27
            
          That test in fact amounts to imposing, for the registration of trade marks, the same conditions as those which must be met
         if a design is to be registered. Although OHIM acknowledges that one and the same item may be protected under different systems
         of industrial property law, it is of the utmost importance to apply the definitions and conditions corresponding to the protection
         pertaining to each of those systems separately.
         
          Findings of the Court
         
         
         28
            
          Under Article 4 of Regulation No 40/94 a Community trade mark may consist of any signs capable of being represented graphically,
         provided that such signs are capable of distinguishing the products or services of one undertaking from those of other undertakings.
         
         
         
         
         29
            
          It is clear from Article 4 that both a product’s shape and its colours fall among the signs which may constitute a Community
         trade mark. Therefore, a sign consisting of the three-dimensional shape of a tablet for washing machines or dishwashers, in
         combination with the arrangement of the tablet’s colours, may, in principle, constitute a trade mark, provided that the two
         conditions mentioned in the preceding paragraph are met.
         
         
         
         30
            
          However, as the Court of First Instance rightly pointed out in paragraph 52 of the judgment in Case T-118/00 and in the corresponding
         paragraphs of the judgments in Cases T‑117/00 and T-119/00 to T-121/00, the fact that a sign is, in general, capable of constituting
         a trade mark within the meaning of Article 4 of Regulation No 40/94 does not mean that the sign necessarily has distinctive
         character for the purposes of Article 7(1)(b) of  the regulation in relation to a specific product or service. 
         
         
         
         31
            
          Under the last-mentioned provision, trade marks which are devoid of any distinctive character are not to be registered.
         
         
         
         32
            
          For a trade mark to possess distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94, it must serve
         to identify the product in respect of which registration is applied for as originating from a particular undertaking, and
         thus to distinguish that product from those of other undertakings (see, in relation to Article 3(1)(b) of First Council Directive
         89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1),
         a provision which is identical to Article 7(1)(b), Joined Cases C-53/01 to C‑55/01 Linde and Others [2003] ECR I-3161, paragraph 40).
         
         
         
         33
            
          That distinctive character must be assessed, first, by reference to the products or services in respect of which registration
         has been applied for and, second, by reference to the perception of the relevant public, which consists of average consumers
         of the products or services in question, who are reasonably well informed and reasonably observant and circumspect (see, inter
         alia, Linde, paragraph 41, and Case C‑363/99 KoninklijkeKPN Nederland [2004] ECR I‑0000, paragraph 34).
         
         
         
         34
            
          It is apparent from the grounds of the judgments under appeal that the Court of First Instance did not make an error of law
         in its interpretation of Article 7(1)(b) of Regulation No 40/94.
         
         
         
         35
            
          The Court of First Instance, in accordance with the settled case-law of the Court of Justice, assessed whether the trade marks
         at issue were devoid of any distinctive character by reference, first, to the products or services in respect of which their
         registration was sought, and, second, by reference to the perception of the relevant public, which consists, in this case,
         of all consumers.
         
         
         
         36
            
          The Court of First Instance was also correct in stating that the criteria for assessing the distinctive character of three-dimensional
         shape-of-products marks are no different from those applicable to other categories of trade mark. It none the less observed
         that, 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 (see, to that effect, Linde, paragraph 48, and Case C‑218/01 Henkel [2004] ECR I‑0000, paragraph 52).
         
         
         
         37
            
          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 for the
         purposes of Article 7(1)(b) of Regulation No 40/94. 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, in relation to the identical provision in Article 3(1)(b) of First Directive 89/104,
         Henkel, paragraph 49).
         
         
         
         38
            
          It follows that, in holding that the trade marks for which registration is sought were devoid of any distinctive character
         for the purposes of Article 7(1)(b) of Regulation No 40/94, the Court of First Instance did not make an error of law in relation
         to either that provision or the relevant case-law of the Court of Justice. 
         
         
         
         39
            
          The actual application by the Court of First Instance of those criteria to these cases involves findings of a factual nature.
         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 (see Case C-104/00 P DKV v OHIM [2002] ECR I-7561, paragraph 22).
         
         
         
         40
            
          In this instance, there is nothing in the findings made by the Court of First Instance to suggest that the evidence produced
         to it was distorted.
         
         
         
         41
            
          In view of the foregoing, the first part of the plea, which relates to the distinctive character of a trade mark, must be
         rejected as unfounded.
         
         The second part of the plea: the need to consider the trade mark as a whole Arguments of the parties
         
         
         42
            
          By the second part of its plea, Procter & Gamble submits that, in assessing whether the combination of the shapes of the tablets
         concerned and the arrangement of their colours may be perceived by the relevant public as an indication of the tablets’ origin,
         the Court of First Instance did not actually analyse the overall impression produced by that combination, as the case-law
         requires it to do. It comprehensively examined each of the individual components of which of the tablets are composed and
         based its subsequent conclusions on that examination but it did not really analyse the overall impression produced by the
         specific combinations concerned.
         
         
         
         43
            
          OHIM challenges this part of the plea, maintaining that the Court of First Instance correctly considered the trade marks in
         question as a whole, although it confirmed, also quite correctly, that that approach does not preclude starting with a separate
         analysis of each of the individual components of the marks. OHIM, which itself carries out an analysis of that kind, contends
         that the overall impression given by each of the trade marks concerned is of a sign which is not distinctive.
         
          Findings of the Court
         
         
         44
            
          As the Court has consistently held, the average consumer normally perceives a mark as a whole and does not proceed to analyse
         its various details (see SABEL, paragraph 23, and Lloyd Schuhfabrik Meyer, paragraph 25). Thus, in order to assess whether or not a trade mark has any distinctive character, the overall impression
         given by it must be considered (see SABEL, paragraph 23, and, in relation to a word mark, DKV v OHIM, paragraph 24).
         
         
         
         45
            
          That does not mean, however, that the competent authority, responsible for ascertaining whether the trade mark for which registration
         is sought – in this instance the graphic representation of a combination of the shape of a washing machine or dishwasher tablet
         and the arrangement of its colours – is capable of being perceived by the public as an indication of origin, may not first
         examine each of the individual features of the get-up of that mark in turn. It may be useful, in the course of the competent
         authority’s overall assessment, to examine each of the components of which the trade mark concerned is composed
         
         
         
         46
            
          In this instance, the Court of First Instance, having examined each of those components separately, then assessed – as is
         clear from paragraphs 59 to 67 of the judgment in Case T-118/00 and the corresponding paragraphs of the judgments in Cases
         T‑117/00 and T-119/00 to T-121/00 – the overall impression deriving from the shape of the tablets concerned and the arrangement
         of their colours, as is required by the case-law referred to in paragraph 44 of this judgment.
         
         
         
         47
            
          It follows that there is nothing in the judgments under appeal to suggest that the Court of First Instance failed to base
         its assessment of the distinctive character of the trade marks for which registration is sought on the overall impression
         which they produce.
         
         
         
         48
            
          Therefore, the second part of the plea, which relates to the need to consider the trade mark as a whole, must be rejected.
         
         The third part of the plea: the assessment of the average consumer’s level of attention Arguments of the parties
         
         
         49
            
          By the third part of its plea, Procter & Gamble recalls that, at the date on which the relevant trade-mark applications were
         filed, dishwasher tablets and, more particularly, washing machine tablets were not everyday consumer products and that at
         that time they were at the top end of the relevant market. In those circumstances, Procter & Gamble maintains that, contrary
         to the Court of First Instance’s finding, the level of attention paid by the average consumer of those products to their get-up
         was high.
         
         
         
         50
            
          In any event, Procter & Gamble adds that it does not understand why the consumer’s level of attention should not be ‘high’
         in relation to everyday consumer products. The everyday use of such products continually draws the consumer’s attention to
         their get-up and hence is conducive to their receiving a high level of attention.
         
         
         
         51
            
          OHIM contends that in the judgments under appeal the Court of First Instance defined the relevant public as consisting of
         average consumers, who are reasonably well informed and reasonably observant and circumspect, and described the products in
         question as everyday consumer products. In that regard, OHIM submits that what is important is that washing machine or dishwasher
         tablets are intended to be used every day by any consumer whatsoever. The fact that the tablets concerned are more expensive
         than washing or dishwashing products in powder form and that they are products new to the market does not mean that they are
         products at the top end of the market, to which consumers pay great attention.
         
         
         
         52
            
          Furthermore, OHIM submits that it is important to be aware of how the tablets concerned are sold, how they differ from other
         forms of washing or dishwashing products, what their advantages are as against those other products, and how they are actually
         used in the washing process. At no point in the product’s application will the consumer feel the need or the urge to ask himself
         further questions about the shape or external appearance of the tablets.
         
          Findings of the Court
         
         
         53
            
          On this point, the Court of First Instance's finding in paragraph 58 of the judgment in Case T-118/00 and the corresponding
         paragraphs of the judgments in Cases T‑117/00 and T-119/00 to T-121/00, that, since washing machine and dishwasher tablets
         are everyday consumer products, the level of attention paid by the average consumer to their shape and colours is not high
         is a finding of fact, which, as has been recalled in paragraph 39 of this judgment, is not subject to review by the Court
         of Justice on appeal where, as in this instance, it does not entail a distortion of the factual evidence produced to the Court
         of First Instance.
         
         
         
         54
            
          In those circumstances, the third part of the plea, which relates to the assessment of the average consumer's level of attention,
         must also be rejected.
         
         The fourth part of the plea: the date by reference to which the distinctive character of a trade mark must be assessed Arguments of the parties
         
         
         55
            
          By the fourth part of its plea, Procter & Gamble claims that the Court of First Instance was wrong not to adjudicate on the
         question concerning the date by reference to which it is appropriate to assess the distinctive character of the trade marks
         for which registration is sought. In its submission, it is appropriate in this instance to ascertain what were the usual get-ups
         of washing machine and dishwasher tablets on the market at the date on which the various applications were filed and to determine
         whether, from the consumer’s point of view, the get-up of the trade marks for which registration is applied is perceptibly
         different.
         
         
         
         56
            
          OHIM argues that in the judgments under appeal the Court of First Instance did not find it necessary to adjudicate on this
         point because, even at the date on which the applications for registration were filed, the trade marks in question lacked
         distinctiveness. In any event, the conditions for registration of a Community trade mark must, in its submission, be met both
         at the date of filing and again at the date of registration.
         
          Findings of the Court
         
         
         57
            
          As is clear from paragraph 32 of this judgment, a trade mark has distinctive character for the purposes of Article 7(1)(b)
         of Regulation No 40/94 if it serves to distinguish the products or services in respect of which registration is applied from
         those of other undertakings.
         
         
         
         58
            
          In this case, the Court of First Instance was correct in finding, in paragraph 68 of the judgment in Case T-118/00 and in
         the corresponding paragraphs of the judgments in Cases T-117/00 and T‑119/00 to T-121/00, that it was not necessary to decide
         which was the relevant date for the assessment of whether the trade marks had distinctive character for the purposes of that
         provision, since it had found that the marks for which registration was sought were not capable of identifying the origin
         of the products concerned and that that finding was not affected by how many similar tablets were already on the market.
         
         
         
         59
            
          In those circumstances, the Court of First Instance did not make an error of law in finding that there was no need for it
         to decide by reference to which of the two dates the assessment of the distinctive character of the trade marks in question
         should be carried out.
         
         
         
         60
            
          The fourth part of the plea, which relates to the date by reference to which the distinctive character of a trade mark should
         be assessed, must therefore also be rejected as unfounded.
         
         The fifth part of the plea: the criterion concerning use of a trade mark Arguments of the parties
         
         
         61
            
          By the fifth part of its plea, Procter & Gamble submits that the public’s habit of perceiving colours as indicative of a product’s
         origin, a habit which may be created by the use of, or advertising for, other signs, is within the ambit of Article 7(1)(b)
         of Regulation 40/94 and not of Article 7(3) of the regulation.
         
         
         
         62
            
          OHIM contends that the question whether a trade mark has acquired distinctiveness through use arises solely under Article
         7(3) of Regulation No 40/94.
         
          Findings of the Court
         
         
         63
            
          It is sufficient to state in this connection that such an argument is ineffective, since, as is apparent from paragraphs 31
         to 38 of this judgment, the Court of First Instance correctly applied Article 7(1)(b) of Regulation No 40/94 and stated, without
         making any error of law, that the trade marks for which registration is sought were devoid of any distinctive character.
         
         
         
         64
            
          It follows from all of the foregoing that the appeals are unfounded and must therefore be dismissed.
         
         
         Costs
         65
            
          Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118 of those rules,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         As OHIM has applied for costs and Procter & Gamble has been unsuccessful, it must be ordered to pay the costs.
         
         
         On those grounds,
         
         
         
            
            THE COURT (Sixth Chamber)
         
         
          hereby:
         
            
            
             
               1.
                  Dismisses the appeals;
               
            
            
            
             
               2.
                  Orders Procter & Gamble Company to pay the costs.
               
            
            
                  Skouris
               
               
                  Cunha Rodrigues
               
               
                  Puissochet
               
            
                  
               
               
                  
               
               
                  
               
            
                  Schintgen
               
               
                  
               
               
                  Macken
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 29 April 2004.
         
         
         
         
                  R. Grass
               
               
                  V. Skouris
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: English.