Judgment of the General Court (Fifth Chamber) of 30 November 2017 – Toontrack Music v EUIPO (SUPERIOR DRUMMER)
(Case T-895/16)
(European Union trade mark — Application for EU word mark SUPERIOR DRUMMER — Absolute ground for refusal — Descriptive — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (now Article 7(1)(b) and (c) of Regulation (EU) 2017/1001))
1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it – Not included
(Council Regulation No 207/2009, Art. 65)
(see para. 15)
2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Aim – Need to preserve availability
(Council Regulation No 207/2009, Art. 7(1)(c))
(see paras 21, 24)
3. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Assessment of the descriptive nature of a sign – Criteria
(Council Regulation No 207/2009, Art. 7(1)(c))
(see paras 22, 23)
4. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Word mark SUPERIOR DRUMMER
(Council Regulation No 207/2009, Art. 7(1)(c))
(see paras 27, 31-33, 44, 50)
5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Descriptive character of a sign – Circumstance necessarily implying absence of distinctive character of the sign
(Council Regulation No 207/2009, Art. 7(1)(b) and (c))
(see para. 51)
Re:
| ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 3 October 2016 (Case R 2438/2015-5) concerning the registration of the word mark SUPERIOR DRUMMER as an EU trade mark. |
Operative part
The Court:
1. Dismisses the action;
2. Orders Toontrack Music AB to pay the costs.