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Document 62007TJ0351

    Judgment of the Court of First Instance (Second Chamber) of 17 December 2008.
    Somm Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
    Community trade mark - Application for Community tri-dimensional mark - Shelter for shade - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character acquired by use - Article 7(3) of Regulation No 40/94.
    Case T-351/07.

    Thuarascálacha na Cúirte Eorpaí 2008 II-00331*

    ECLI identifier: ECLI:EU:T:2008:591

    Date of document:
    17/12/2008
    Date lodged:
    13/09/2007
    Author:
    Cúirt Ghinearálta
    Country or organisation from which the request originates:
    An Iodáil
    Form:
    Breithiúnas
    Authentic language:
    Iodáilis
    Type of procedure:
    Caingean le haghaidh neamhniú - gan bhunús
    Applicant:
    Duine príobháideach
    Defendant:
    Oifig Maoine Intleachtúla an Aontais Eorpaigh, Institiúidí agus comhlachtaí an Aontais Eorpaigh
    Judge-Rapporteur:
    Jürimäe
    Treaty:
    Conradh ag bunú Chomhphobal Eacnamaíochta na hEorpa
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    Instruments cited in case law:





    Judgment of the Court of First Instance (Second Chamber) of 17 December 2008 – Somm v OHIM (Shelter for shade)

    (Case T-351/07)

    Community trade mark – Application for Community tri-dimensional mark – Shelter for shade – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character acquired by use – Article 7(3) of Regulation No 40/94

    Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 26, 30)

    Re:

    ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.

    Information relating to the case

    Applicant for the Community trade mark:

    Somm Srl

    Community trade mark sought:

    Three-dimensional trade mark described as follows: (‘Three-dimensional whole constituted by a large number of tubular posts of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top, a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’); for goods in Classes 6 and 19 – Application No 4837746

    Decision of the examiner:

    Registration refused

    Decision of the Board of Appeal:

    Appeal dismissed


    Operative part

    The Court:

    1.

    Dismisses the action;

    2.

    Orders Somm Srl to pay the costs.

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