CELEX: 62010CO0546
Language: en
Date: 2011-09-13 00:00:00
Title: Order of the Court (Sixth Chamber) of 13 September 2011. # Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Appeal - Community trade mark - Figurative sign representing the headstock of a guitar - Refusal to register - Absolute ground for refusal - Lack of distinctiveness - Ex officio examination of the facts - Articles 7(1)(b) and 74(1) of Regulation (EC) No 40/94 - Admissibility of evidence submitted for the first time before the General Court - Equality of treatment. # Case C-546/10.

Order of the Court (Sixth Chamber) of 13 September 2011 – Wilfer v OHIM
      (Case C-546/10 P)
      Appeal – Community trade mark – Figurative sign representing the headstock of a guitar – Refusal to register – Absolute ground for refusal – Lack of distinctiveness – Examination of the facts ex officio – Articles 7(1)(b) and 74(1) of Regulation (EC) No 40/94 – Admissibility of evidence submitted for the first time before the General Court – Equality of treatment
      1.                     Community trade mark – Appeals procedure – Action brought before the Union judicature – Jurisdiction of the General Court
            – Review of the legality of decisions of the Boards of Appeal –  General Court taking into consideration evidence relating
            to matters not previously submitted to the bodies of the Office – Excluded (Council Regulation No 40/94, Arts 63 and 74(1))
            (see para. 41)
      2.                     Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid
            of any distinctive character – Figurative mark consisting of the two-dimensional representation of a product – Distinctive
            character – Criteria for assessment (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 58-59)
      3.                     Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment
            of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256(1), TFEU; Statute
            of the Court of Justice, Art. 58, first para.) (see paras 62, 64)
      Re: 
      
         Appeal brought against the judgment of the General Court (Fourth Chamber) of 8 September 2010 in Case T‑458/08 
               Wilfer
                v 
               OHIM
               , by which the General Court dismissed the action for annulment brought against the decision of the Fourth Board of Appeal
                  of OHIM of 25 July 2008, dismissing the appeal against the examiner’s decision refusing in part registration of the figurative
                  sign representing the headstock of a guitar coloured silver, grey and brown as a Community trade mark for certain goods in
                  Classes 9 to 15 – Distinctiveness of a figurative sign consisting of the two-dimensional representation of part of the product.
               
            Operative part 
      
         
                  1.
               
               
                  
               
               
                  	The appeal is dismissed. 
               
            
         
                  2.
               
               
                  
               
               
                  	Mr Wilfer is ordered to pay the costs.