Case T-63/01

The Procter & Gamble Company

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

‛Community trade mark — Soap bar shape — Compliance with a judgment of the Court of First Instance — Rights of defence — Absolute grounds for refusal — Article 7(1)(b) of Regulation (EC) No 40/94’

Judgment of the Court of First Instance (Fourth Chamber), 12 December 2002   II-5257

Summary of the Judgment

1. Community trade mark — Appeals procedure — Boards of Appeal — Classification as administration of the Office — Right of the parties to a fair ‘hearing’ — None

   (Council Regulation No 40/94, Arts 60 to 62)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark — Soap bar shape

   (Council Regulation No 40/94, Art. 7(1)(b))

1.  The Boards of Appe al of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) cannot be classified as ‘tribunals’. Since a Board of Appeal enjoys, in particular, the same powers as the examiner, where it exercises them it acts as the administration of the Office. An action before the Board of Appeal therefore forms part of the administrative registration procedure, following an ‘interlocutory revision’ by the ‘first department’ to carry out an examination, pursuant to Article 60 of Regulation No 40/94 on the Community trade mark.

   Consequently, a party may not validly rely on a right to a fair ‘trial’ before the Boards of Appeal of the Office.

   (see paras 22-23)

2.  Pursuant to Article 7(1)(b) of Regulation No 40/94 on the Community trade mark ‘trade marks which are devoid of any distinctive character’ are not to be registered. As regards the registration of a three-dimensional trade mark in the shape of a rectangular parallelepiped with rounded edges, sought for soaps in Class 3 of the Nice Agreement, that shape is devoid of any distinctive character since, even though the shape requested is not strictly identical to a soap bar shape existing on the market, it does not have characteristics of its own capable of informing the consumer of the trade origin of the goods.

   (see paras 36, 47)