Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2004-04-29
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 Koninklijke KPN Nederland  [2004] ECR I‑0000, paragraph 34).
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).
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).
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).