August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2006-06-22
23. As regards the first part of the first ground of appeal, it is settled case-law that the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public, which consists of average consumers of the goods or services in question who are reasonably well informed and reasonably observant and circumspect (see Joined Cases C-456/01 P and C-457/01 P Henkel  v OHIM [2004] ECR I‑5089, paragraph 35, and Case C-173/04 P Deutsche SiSi-Werke  v OHIM  [2006] ECR I-0000, paragraph 25).
24. According to equally established case-law, the criteria for assessing the distinctive character of three-dimensional marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark (see Henkel  v OHIM , paragraph 38, Case C-136/02 P Mag Instrument  v OHIM  [2004] ECR I‑9165, paragraph 30, and Deutsche SiSi-Werke  v OHIM , paragraph 27).
25. None the less, for the purpose of applying those criteria, the relevant public’s perception is not necessarily the same in the case of a three-dimensional mark, which consists of the appearance of the product itself, as it is in the case of a word or figurative mark, which consists of a sign unrelated to 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, in particular, Henkel  v OHIM , paragraph 38, Mag Instrument  v OHIM , paragraph 30, and Deutsche SiSi-Werke  v OHIM , paragraph 28).
26. 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 (see, in particular, Henkel  v OHIM , paragraph 39, Mag Instrument  v OHIM , paragraph 31, and Deutsche SiSi-Werke  v OHIM , paragraph 31).
35. The findings of the Court of First Instance in paragraphs 39 to 42 of the judgment under appeal that, first, the level of attention paid by the average consumer to the shape and colour of confectionery is not high, and, second, that the three-dimensional shape of the mark applied for is a basic geometric shape are findings of fact (see, to that effect, Henkel  v OHIM , paragraph 56, and Deutsche SiSi-Werke  v OHIM , paragraph 47, respectively).
36. In accordance with Article 225(1) 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 or evidence are distorted, constitute points of law 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, and Deutsche SiSi-Werke  v OHIM , paragraph 35).
45. According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court’s jurisdiction is therefore confined to review of the findings of law on the pleas argued before the Court of First Instance (see, in particular, Case C-186/02 P and C-188/02 P Ramondín and Others  v Commission  [2004] ECR I-10653, paragraph 60).
61. Furthermore, in regard to acquisition of distinctive character through use, the identification by the relevant class of persons of the product or service as originating from a given undertaking must be as a result of the use of the mark as a trade mark (Case C-299/99 Philips  [2002] ECR I-5475, paragraph 64, and Nestlé , paragraph 26). The expression ‘use of the mark as a trade mark’ must therefore be understood as referring to use of the mark for the purposes of the identification by the relevant class of persons of the product or service as originating from a given undertaking ( Nestlé , paragraph 29).
70. As regards the third part of that ground of appeal, it must be noted that, if a mark does not ab initio  have distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94, Article 7(3) provides that it may acquire such character in relation to the goods or services claimed as a result of its use. Such distinctive character may be acquired, inter alia, after the normal process of familiarising the relevant public has taken place (Case C-104/01 Libertel  [2003] ECR I-3793, paragraph 67, and Mag Instrument  v OHIM , paragraph 47).
72. None the less, it is when making his choice between different products in the category concerned that the average consumer exhibits the highest level of attention (see, to that effect, Case C-361/04 P Ruiz-Picasso and Others  v OHIM  [2006] ECR I-0000, paragraph 41), so that the question whether or not the average consumer sees the mark at the time of purchase is of particular importance for determining whether the mark has acquired distinctive character through use.