Judgment of the General Court (Fifth Chamber) of 7 October 2015 —

The Smiley Company v OHIM (Shape of a face with horns)

(Case T‑242/14)

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of a face with horns — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009’

1. 

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 29, 30)

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 constituted by the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 31-37)

3. 

Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark constituted by the shape of a face with horns (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 39-47)

4. 

Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see paras 49-53)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 16 January 2014 (Case R 836/2013-1) concerning an application for registration as a Community trade mark of a three-dimensional sign comprising the shape of a face with horns.

Operative part

The Court:

1. 

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 January 2014 (Case R 836/2013-1) with regard to the refusal to register the mark applied for in respect of ‘preserved, frozen, dried and cooked fruits and vegetables; milk products’;

2. 

Dismisses the action as to the remainder;

3. 

Orders the parties to bear their own costs.