Eurohypo AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2008-05-08
33. It follows from settled case-law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24; Case C‑40/03 P Rica Foods v Commission [2005] ECR I-6811, paragraph 60; and Case C‑551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 52).
34. In that regard, it should be recalled that there is distortion of the clear sense of the evidence where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect (Case C‑229/05 P PKK and KNK v Council [2007] ECR I-439, paragraph 37, and Case C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I-6557, paragraph 60).
41. As regards a compound trade mark, such as that at issue in the present case, the assessment of its distinctive character cannot be limited to an evaluation of each of its words or components, considered in isolation, but must, on any view, be based on the overall perception of that mark by the relevant public and not on the presumption that elements individually devoid of distinctive character cannot, on being combined, have a distinctive character (see, to that effect, Case C‑329/02 P SAT.1 v OHIM [2004] ECR I-8317, paragraph 35). The mere fact that each of those elements, considered separately, is devoid of any distinctive character does not mean that their combination cannot present such character (Case C‑37/03 P BioID v OHIM [2005] ECR I-7975, paragraph 29).
54. It must, first, be borne in mind that, while the Court of Justice has had occasion to find a degree of overlap between the respective scope of the absolute grounds for refusal to register a trade mark set out in Article 7(1)(b) to (d) of Regulation No 40/94 (see, by analogy, as regards the identical provisions of Article 3(1) 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), Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I-1619, paragraph 67, and Case C‑265/00 Campina Melkunie [2004] ECR I-1699, paragraph 18), it is nevertheless the case that, according to established case-law, each of the grounds for refusal to register listed in Article 7(1) of Regulation No 40/94 is independent of the others and requires separate examination (see Joined Cases C‑456/01 P and C‑457/01 P Henkel v OHIM [2004] ECR I-5089, paragraph 45; Case C‑64/02 P OHIM v Erpo Möbelwerk [2004] ECR I-10031, paragraph 39; and Case C‑173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-551, paragraph 59).
55. The Court of Justice has also had occasion to make it clear that the various grounds for refusal must be interpreted in the light of the public interest underlying each of them. The public interest taken into account in the examination of each of those grounds for refusal may, or even must, reflect different considerations, depending upon which ground for refusal is at issue ( Henkel v OHIM , paragraphs 45 and 46; SAT.1 v OHIM , paragraph 25; and BioID v OHIM , paragraph 59).
56. In that regard, it should be noted that the notion of general interest underlying Article 7(1)(b) of Regulation No 40/94 is, manifestly, indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin ( SAT.1 v OHIM , paragraphs 23 to 27, and BioID v OHIM , paragraph 60).
66. As a preliminary point, it should be borne in mind, as is apparent from paragraph 56 of this judgment, that for a trade mark to possess a distinctive character within the meaning 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 ( Henkel  v OHIM , paragraph 34 and the case-law cited).
67. In that regard, it is apparent from settled case-law that 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 (Joined Cases C‑473/01 P and C‑474/01 P Procter & Gamble  v OHIM [2004] ECR I-5173, paragraph 33, and Case C‑25/05 P Storck v OHIM [2006] ECR I-5719, paragraph 25).
69. As OHIM correctly stated in the contested decision, the relevant public, in the field covered by the trade mark application, understand the word sign EUROHYPO as referring, as a whole and in general, to financial services requiring real securities and, in particular, to mortgage loans paid in the currency of the European Economic and Monetary Union. Furthermore, there is no additional element which would allow the view to be reached that the combination, created by the current and usual components EURO and HYPO, is unusual or might have its own meaning which, in the perception of the relevant public, distinguishes the services offered by the appellant from those of a different commercial origin. Therefore, the relevant public perceives the trade mark in question as providing details of the type of services which it designates and not as indicating the origin of those services.