Birkenstock Sales GmbH v European Union Intellectual Property Office.
Date: 2018-09-13
29


Regarding the admissibility of the first part of the first ground of appeal, it should be borne in mind that, under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on a point 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 they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49 and the case-law cited).
31


Regarding the merits of that part, it follows from the settled case-law of the Court that the distinctive character of a trade mark for the purposes of Article 7(1)(b) of Regulation No 207/2009 means that the mark in question makes it possible to identify the product in respect of which registration is sought 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 is sought and, second, by reference to the relevant public’s perception of the mark (judgments of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraph 79 and the case-law cited, and of 21 January 2010, Audi v OHIM, C‑398/08 P, EU:C:2010:29, paragraphs 33 and 34).
32


In that regard, the General Court was entitled to recall, in paragraph 23 of the judgment under appeal, that 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. It also specified that, for the purpose of applying those criteria, the average consumer’s perception is not necessarily the same in the case of a three-dimensional mark consisting of the appearance of the product itself as it is in the case of a word or figurative mark consisting of a sign which is 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 the distinctiveness of such a three-dimensional mark than that of a word or figurative mark (judgments of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30, and of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraphs 26 and 27).
33


In those circumstances, as the General Court was also entitled to recall in paragraph 24 of the judgment under appeal, 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 207/2009 (judgments of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 31, and of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 28).
34


That case-law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself, also applies where the trade mark applied for is a figurative mark consisting of the two-dimensional representation of that product (judgment of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 29), or where the mark applied for is a sign consisting of a design applied to the surface of a product (see, to that effect, order of 28 June 2004, Glaverbel v OHIM, C‑445/02 P, EU:C:2004:393, paragraphs 22 to 24). In neither of those cases does the mark consist of a sign which is unrelated to the appearance of the products it denotes.
35


That case-law is also applicable where only a part of the product designated is represented by a mark (order of 13 September 2011, Wilfer v OHIM, C‑546/10 P, not published, EU:C:2011:574, paragraph 59, and judgment of 15 May 2014, Louis Vuitton Malletier v OHIM, C‑97/12 P, not published, EU:C:2014:324, paragraph 54).
46


In that regard, it recalls, making reference to the judgments of 7 October 2004, Mag Instrument v OHIM (C‑136/02 P, EU:C:2004:592, paragraph 31), and of 24 May 2012, Chocoladefabriken Lindt & Sprüngli v OHIM (C‑98/11 P, EU:C:2012:307, paragraph 42), the settled case-law according to which only a mark which departs significantly from the norm or customs of the sector concerned 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 207/2009.
59


In that regard, the appellant refers to the judgment of 16 September 2004, SAT.1 v OHIM (C‑329/02 P, EU:C:2004:532, paragraph 41), from which it is apparent that the registration of a sign as an EU trade mark is not subject to a finding of a specific level of creativity or imaginativeness on the part of the proprietor of the trade mark, but only to that sign’s capacity to distinguish the goods or services concerned from those of other undertakings. The interlaced lines crisscrossing at right angles which make up the sign at issue give a precise and distinctive overall impression of a ‘bone pattern’, with the result that the overall impression produced by that sign is an indication of the origin of the goods concerned.
80


It should be borne in mind that, given the exceptional nature of a ground of appeal alleging distortion of the facts, Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court provide, in particular, that the appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgments of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 69 and the case-law cited, and of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraphs 47 and 48).