Eurocermex SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2005-06-30
22. As the Court has consistently held, and as the Court of First Instance indeed recalled in paragraph 25 of the judgment under appeal, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. 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, inter alia, Joined Cases C-468/01 P to C-472/01 P Procter & Gamble  v OHIM  [2004] ECR I-5141, paragraph 44, and Case C-136/02 P Mag Instrument  v OHIM  [2004] ECR I-0000, paragraph 20).
23. That does not mean, however, that the competent authority, responsible for ascertaining whether the trade mark for which registration is sought 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 (see, in particular, Procter & Gamble  v OHIM , cited above, paragraph 45).
26. As the Court of Justice held in Case C-329/02 P SAT.1  v OHIM  [2004] ECR I‑8317, at paragraph 35, in assessing whether a composite mark has distinctive character, the overall perception of the mark by the average consumer should be relied upon, and not the presumption that features individually devoid of distinctive character cannot, on being combined, display such character.
29. It thus stated, in paragraph 32 of the judgment under appeal that, ‘with more particular reference to the structure of the mark applied for, which is distinguished by the fact that the slice of lemon is plugged in the neck of the bottle, it is difficult to imagine other ways of combining those elements in a single three-dimensional form’, that ‘it represents the only way in which a drink can be decorated with a slice or a piece of lemon when the drink is consumed directly from the bottle’ and that, consequently, ‘the manner in which the elements of the composite mark in question are combined is not capable of giving it a distinctive character’.
42. As to those submissions, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C-352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraph 34, and Case C‑234/02 P Ombudsman  v Lamberts  [2004] ECR I‑2803, paragraph 76).
43. In addition, under Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal ( Mag Instrument  v OHIM , cited above, paragraph 39).
49. As pointed out in paragraph 42 of the present judgment, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal.
50. Where an appeal merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails to satisfy that requirement. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice (see, in particular, Bergaderm and Goupil  v Commission , cited above, paragraph 35, and Ombudsman  v Lamberts , cited above, paragraph 77).