Louis Vuitton Malletier v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2014-05-15
50. The Court has consistently held that the distinctive character of a trade mark, for the purposes of Article 7(1)(b) of Regulation No 40/94, means that the mark in question makes it possible 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. 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 (order of 13 September 2011 in Case C‑546/10 P Wilfer  v OHIM , not published in the ECR, paragraph 52 and the case-law cited).
52. In those circumstances, only a 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 Article 7(1)(b) of Regulation No 40/94 (order in Wilfer  v OHIM , paragraph 54 and the case-law cited).
54. It follows from that latter finding that the case-law relating to three-dimensional marks must be applicable also where only part of the product designated is represented by a mark. As the General Court noted in paragraph 25 of the judgment under appeal, such a mark no more consists of a sign independent of the appearance of the product it designates than a figurative mark representing the entire product (order in Wilfer  v OHIM , paragraph 59).
59. The General Court thus — in accordance with the settled case-law of the Court of Justice which requires that, in assessing the distinctive character of a mark, account be taken of the overall impression produced by that mark (see, to that effect, Case C‑238/06 P Develey  v OHIM EU:C:2007:635, paragraph 82 and the case-law cited) — carried out an overall examination of the capacity of the mark at issue to denote the commercial origin, and based that examination on the facts, arguments and evidence produced by the parties, in relation to every group of products covered by the application for registration of that mark. The General Court did not therefore err in law as alleged by Louis Vuitton.
61. In that regard, it should be recalled that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court 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 does not, save where the facts or evidence are distorted, constitute a point of law which, as such, is open to review by the Court of Justice on appeal (order of 16 May 2011 in Case C‑429/10 P X Technology Swiss  v OHIM , not published in the ECR, paragraph 41).
70. As regards the burden of proof and the presumption of validity, it must be pointed out, first of all, that in the context of an examination of the existence of absolute grounds for refusal under Article 7(1) of Regulation No 40/94, the role of OHIM is to decide whether the application for registration of the trade mark falls under an absolute ground for refusal ( Develey  v OHIM , EU:C:2007:635, paragraph 48).
71. It must be ad ded that, under Article 74(1) of Regulation No 40/94, OHIM must examine of its own motion the relevant facts that could lead it to apply an absolute ground for refusal ( Develey  v OHIM , EU:C:2007:635, paragraph 49).
72. Lastly, as was correctly pointed out in paragraph 53 of the judgment under appeal, if an applicant claims that a trade mark applied for is distinctive, despite OHIM’s analysis, it is for that applicant to provide specific and substantiated information to show that the trade mark applied for has either an intrinsic distinctive character or a distinctive character acquired through use ( Develey  v OHIM , EU:C:2007:635, paragraph 50).
74. As regards the alleged distortion of the facts, it is sufficient to note that, by that line of argument, Louis Vuitton is actually calling into question the assessment of the facts and evidence made by the General Court, without establishing — as required by the case-law — that those facts and evidence were clearly distorted by the latter (see, to that effect, judgment of 10 November 2011 in Case C‑88/11 P LG Electronics v OHIM , not published in the ECR, paragraph 37 and the case-law cited). That line of argument must therefore be rejected as inadmissible, pursuant to the case-law referred to in paragraph 61 above.
81. First of all, it must be observed that an action before the General Court against a Board of Appeal’s decision in opposition proceedings is not open to OHIM. In fact, under Article 63(4) of Regulation No 40/94, such an action ‘shall be open to any party to proceedings before the Board of Appeal adversely affected by its decision’ (Case C‑106/03 P Vedial  v OHIM  EU:C:2004:611, paragraph 31). Accordingly, OHIM cannot seek the annulment or alteration of the Board of Appeal’s decision on a point not raised in the application initiating proceedings ( Vedial  v OHIM , EU:C:2004:611, paragraph 34).
84. The question whether the grounds of a judgment of the General Court are inadequate is a question of law which, as such, is amenable to review on appeal (see, inter alia, Case C‑263/09 P Edwin  v OHIM  EU:C:2011:452, paragraph 63 and the case-law cited).
93. The question whether the grounds of a judgment of the General Court are contradictory is a question of law which, as such, is amenable to review on appeal (see, inter alia, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others  v Council and Commission  EU:C:2008:476, paragraph 90 and the case-law cited).