Keywords
Summary

Keywords

1. Community trade mark — Appeals procedure — Appeals before the Community Courts — Jurisdiction of the Court of First Instance — Review of the facts in the light of evidence adduced before it for the first time — Not included — (Rules of Procedure of the Court of First Instance, Art. 135(4); Council Regulation No 40/94, Art. 63)

2. Community trade mark — Definition and acquisition of Community trade mark — Absolute grounds for refusal — Marks devoid of distinctive character — Figurative mark comprising a representation of a vehicle grille — (Council Regulation No 40/94, Art. 7(1)(b))

Summary

1. In an action for review of the legality of the decisions of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) within the meaning of Article 63 of Regulation No 40/94 on the Community trade mark, it is not the Court ' s function to re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. To admit such evidence is contrary to Article 135(4) of the Rules of Procedure of the Court of First Instance, which prohibits the parties from changing the subject-matter of the proceedings before the Board of Appeal.

see para. 18

2. Under 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.

With regard, in that context, to the registration, sought in respect of " vehicles; apparatus for locomotion by land, air or water; parts thereof" in Class 12 of the Nice Agreement, of a figurative mark comprising a representation of the front part of a car having an irregular shape and with seven wide vertical openings in the centre and a circle representing the headlights of the vehicle on each side at the top, the mark is not devoid of any distinctive character in so far as it is an unusual grille design, conveying the impression of an old-fashioned grille, in a simple configuration, which cannot be regarded as altogether commonplace, so that the grille in question must be considered to be capable of leaving an impression on the memory of the target public as an indication of commercial origin and thus of distinguishing and setting apart motor vehicles bearing that grille from those of other undertakings.

see paras 46, 48, 50