Henkel KgaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2007-10-04
34. According to consistent case-law, for a trade mark to possess distinctive character within the meaning of that article, 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 (Joined Cases C-473/01 P and C‑474/01 P Procter & Gamble  v OHIM  [2004] ECR I‑5173, paragraph 32, and Case C‑64/02 P OHIM  v Erpo Möbelwerk  [2004] ECR I‑10031, paragraph 42).
35. 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 (see Joined Cases C-473/01 P and C‑474/01 P Procter & Gamble  v OHIM , paragraph 33, and Case C‑25/05 P Storck  v OHIM  [2006] ECR I‑5719, paragraph 25).
36. According to equally consistent case-law, the criteria for assessing the distinctive character of three-dimensional trade marks consisting of the appearance of the product itself are no different from those applicable to other categories of trade mark. However, when those criteria are applied, account must be taken of the fact that the perception of the average consumer is not necessarily the same in relation to a three-dimensional mark consisting of the appearance of the product itself as it is in relation to a word or figurative mark consisting of a sign which is independent of 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 (Case C‑136/02 P Mag Instrument  v OHIM  [2004] ECR I‑9165, paragraph 30, and Storck  v OHIM , paragraphs 26 and 27).
37. 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 (Case C‑173/04 P Deutsche SiSi-Werke  v OHIM  [2006] ECR I‑551, paragraph 31, and Storck  v OHIM , paragraph 28).
38. That case-law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself, also applies where, as in the present case, the trade mark applied for is a figurative mark consisting of the two-dimensional representation of that product. In such a case, the mark likewise does not consist of a sign unrelated to the appearance of the products it covers ( Storck  v OHIM , paragraph 29).
39. It must be recalled that, in order to assess whether or not a trade mark has any distinctive character, the overall impression given by it must be considered. That does not mean, however, that there is no need, first of all, to carry out a successive examination of the different presentational features used by this mark. It may be useful, in the course of the overall assessment, to examine each of the constituent features of the trade mark (see, in this respect, Case C-286/04 P Eurocermex  v OHIM  [2005] ECR I‑5797, paragraphs 22 and 23, and the case-law cited there).
43. As regards the assessment of the elements taken as a whole, the Court of First Instance held, in paragraph 39 of the judgment under appeal, that ‘the overall impression given by the sign in issue is limited to a representation of a washing-machine or dishwashing product in the shape of a tablet grouping together several active chemical agents in a decorative and attractive manner in two coloured layers of red and white, with the red layer featuring an oval blue centre. Since the consumer is not accustomed to finding an indication of the commercial origin of a product in its shape and colours …, since the presence of two layers and the addition of an oval centre in a different colour is one of the most obvious solutions for the design of a washing-machine or dishwashing product in the form of a tablet … and since, as basic colours normally used in the sector concerned, the colours chosen are not of a kind to attract the consumers’ attention …, the overall impression given by the sign will not indicate to the targeted public that the actual depiction of the product reveals its commercial origin. Therefore, the mark applied for does not enable the average consumer of such goods, who is reasonably well informed and reasonably observant and circumspect, to distinguish the product concerned from those of other undertakings without conducting an analytical or comparative examination and without paying particular attention …’.
44. It thus appears, first, that the Court of First Instance based its assessment as to whether the mark applied for has distinctive character on the overall impression which is conveyed by the shape and the arrangement of the colours of that mark, and, second, that it established that that mark does not make it possible to distinguish the product from those of competitors in the sector in question.
49. 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 before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, in this respect, Case C‑104/00 P DKV  v OHIM  [2002] ECR I‑7561, paragraph 22, and Joined Cases C‑456/01 P and C‑457/01 P Henkel  v OHIM  [2004] ECR I‑5089, paragraph 41).
51. It must be added that the findings, in the judgment under appeal, relating to the characteristics of the relevant public and to consumers’ degree of attention, perception or attitude also represent appraisals of fact.