August Storck KG v European Union Intellectual Property Office.
Date: 2017-05-04
As regards the first part of the first ground of appeal, the Court has consistently held 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 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 goods or services in respect of which registration is sought and, second, by reference to the perception of the relevant public (see, to that effect, judgment of 15 May 2014, Louis Vuitton Malletier v OHIM, C‑97/12 P, not published, EU:C:2014:324, paragraph 50 and the case-law cited).
The criteria for assessing the distinctive character of three-dimensional trade marks consisting of the shape of the product itself are no different from those applicable to other categories of trade mark (judgments of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30, and of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 27).
However, when those criteria are applied, the perception of the relevant public is not necessarily identical 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 which consists of a sign independent of the appearance of the products which it designates. 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 (judgments of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 30 and the case-law cited, and of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 28).
In those circumstances, only a mark which departs significantly from the standard 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 (see, to that effect, judgment of 15 May 2014, Louis Vuitton Malletier v OHIM, C‑97/12 P, not published, EU:C:2014:324, paragraph 52 and case-law cited).
That case-law, which was developed in relation to three-dimensional trade marks consisting of the appearance of the product itself, also applies in respect of figurative marks consisting of the two-dimensional representation of the product (judgment of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 29).
That finding is supported by the case-law of the Court of Justice on three-dimensional marks that contain a figurative element. According to that case-law, where a three-dimensional mark incorporates a figurative element not consisting of a sign which is independent of the appearance of the products, but constitutes, in the mind of the consumer, only a decorative configuration, that mark cannot be assessed under the criteria for word and figurative marks which consist of a sign independent of the appearance of the products which they designate (judgment of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 38). Such considerations are clearly transposable to two-dimensional marks that have a figurative element.
In that regard, the General Court found, in paragraphs 49 and 51 of the judgment under appeal, that (i) the different colours are commonplace, such that they will be perceived by the relevant public only as being aesthetic or presentational elements, (ii) the interpretation that the figurative element in question represents a snow-covered mountain and a blue sky is not obvious to the relevant consumer, (iii) it is well known that such a pattern and a blue sky frequently appear on the packaging of products such as the goods concerned, (iv) as regards the colours used, the white part could also bring to mind milk, an ingredient commonly used in chocolates and ice-creams, which is often represented on the packaging of chocolates, and (v) the addition of an image naturally comes to mind, given that the consumer is used to the fact that coloured elements are present on the packaging of products such as the goods concerned. It is on the basis of those considerations that the General Court concluded, also in paragraph 51, that the image affixed to the mark applied for and the grey edges of the packaging were not such as to confer a distinctive character on that mark and that those elements were likely to be seen by consumers as mere decorative patterns and not as an indication of origin.
In that regard, it must be recalled that the appraisal of those facts and the assessment of that evidence 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 (judgment of 2 March 2017, Panrico v EUIPO, C‑655/15 P, not published, EU:C:2017:155, paragraph 86).
The Court has held that findings relating to the characteristics of the relevant public and its degree of attention, perception or attitude represent appraisals of fact (judgment of 20 November 2014, Intra-Presse v Golden Balls, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 62 and the case-law cited). That applies, in the present case, to the assessments made by the General Court, in paragraph 38 of the judgment under appeal, about the general public regarding the confectionery products in question.