Judgment of the General Court (Fourth Chamber) of 28 January 2015 — Enercon v OHIM (Gradient of five shades of the colour green)
(Case T‑655/13)
Community trade mark — Application for Community trade mark consisting of a gradient of five shades of the colour green — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Reclassification of the mark applied for — Article 43(2) of Regulation No 207/2009
1. Community trade mark — Registration procedure — Withdrawal, restriction and amendment of the trade mark application — Application for rectification of the mark — Rectification consisting in a reclassification of the mark — Modification substantially affecting the mark — Dismissal of application (Council Regulation No 207/2009, Art. 43(2)) (see paras 14, 16, 17)
2. Community trade mark — Definition and acquisition of the Community trade mark — Signs capable of constituting a mark — Colours or combinations of colours — Condition — Distinctive character — Account to be taken of the public interest in not unduly restricting the availability of colours (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 23-27)
3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Gradient of five shades of the colour green (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 30, 35-40)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 11 September 2013 (Case R 247/2013-1), concerning an application for registration of a gradient of five shades of the colour green as a Community trade mark. |
Operative part
The Court:
2. | | Orders Enercon GmbH to pay the costs. |