Keywords
Summary

Keywords

1. Community trade mark – Decisions of OHIM – Compliance with the principle of due process

(Council Regulation No 40/94, Art. 73)

2. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Trade marks devoid of any distinctive character – Recognition of a colour per se as having distinctive character – Acquisition in consequence of use

(Council Regulation No 40/94, Art. 7(1)(b) and (3))

Summary

1. In accordance with the second sentence of Article 73 of Regulation No 40/94 on the Community trade mark, decisions of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) may be based only on matters of fact or of law on which the parties have been able to set out their views.

Consequently, in the case in which the Board of Appeal assembles of its own motion facts intended to serve as a basis for its decision, it is under an obligation to notify the parties of those facts in order that the parties may submit their views thereon.

(see paras 42-43)

2. While a colour per se may acquire, for the goods or services in respect of which registration of a Community trade mark is sought, a distinctive character in consequence of the use which has been made of it, by virtue of Article 7(3) of Regulation No 40/94, in the case of a colour per se, distinctiveness without any prior use, within the meaning of Article 7(1)(b) of that regulation, is inconceivable save in exceptional circumstances, in particular where the number of goods or services for which the mark is claimed is very restricted and the relevant market very specific.

(see para. 79)