Case T-449/07

Thomas Rotter

v

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

‛Community trade mark — Application for a three-dimensional Community trade mark — Shape of an arrangement of sausages — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94’

Judgment of the Court of First Instance (Second Chamber), 5 May 2009   II ‐ 1073

Summary of the Judgment

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))

The three-dimensional sign representing the shape of an arrangement of sausages for which registration is sought in respect of ‘charcuterie’ in Class 29 under the Nice Agreement is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark.

The goods at issue, namely charcuterie (Wurstwaren), are sold not only by butchers, but also in supermarkets, in areas specifically intended for that purpose and in refrigerated goods departments. They are, therefore, everyday consumer goods intended for the average consumer in the European Union. As regards the shape applied for, that is to say, an arrangement of a number of sausages, that arrangement differs from the most widespread classic shape of the goods at issue, namely that of a sausage. It has not been demonstrated how the shape applied for differs significantly from the usual shape in which sausages are presented in trade. It follows therefrom that, as the goods at issue — charcuterie — are everyday consumer goods, the average consumer will not perceive the shape applied for as an indication of the commercial origin of those goods.

(see paras 25, 26, 30, 31)