Case T-281/09

Deutsche Steinzeug Cremer & Breuer AG

v

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

(Community trade mark – Application for the Community word mark CHROMA – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009)

Summary of the Judgment

1.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks consisting exclusively of signs or indications which may serve to designate the characteristics of goods – Meaning

(Council Regulation No 207/2009, Art. 7(1)(c))

2.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks consisting exclusively of signs or indications which may serve to designate the characteristics of goods

(Council Regulation No 207/2009, Art. 7(1)(c))

1.      A word sign must be refused registration under Article 7(1)(c) of Regulation No 207/2009 on the Community trade mark if at least one of its possible meanings designates a characteristic of the goods or services concerned. Furthermore, it is not necessary, in order for the Office for Harmonisation in the Internal Market (Trade Marks and Designs) so to refuse to register a trade mark, that the sign in question actually be in use in a way that is descriptive, but merely that it could be used for such purposes.

Furthermore, it is irrelevant whether the characteristics of the goods or services which may be described by the sign in question are commercially essential or merely ancillary, or even whether or not there are synonyms permitting the same characteristics to be designated.

(see paras 28-29)

2.      The word sign CHROMA, registration of which is sought in respect of ‘sinks, shower trays and bath tubs, wash basins, bidets, urinals, toilets, cisterns, all of ceramic’ and ‘Building materials, not of metal; tiles, mouldings, pipes and fittings for building, all not of metal; ceramic tiles, mosaics and shaped parts for building; Potters’ clay (raw material)’ in Classes 11 and 19 respectively of the Nice Agreement is, from the point of view of the Greek-speaking consumer, descriptive of the goods referred to in the Community trade mark application for the purposes of Article 7(1)(c) of Regulation No 207/2009 on the Community trade mark.

Transliterations into Latin characters of Greek words must be treated in the same way, for the purpose inter alia of examining the absolute grounds for refusal set out in Article 7(1)(b) and (c) of that regulation, as words written in Greek characters. That finding applies particularly in the case of the sign CHROMA because it is a faithful transcription of the Greek word ‘χρώμα’ meaning ‘colour’, in letters of the Latin alphabet which is known to the Greek-speaking consumer concerned.

The use of the word ‘colour’ thus conveys a message which is capable of being grasped immediately by the consumer concerned as it indicates that there is a range of goods in various colours, in particular, as regards ceramic sanitary appliances and ceramic building materials for bathrooms, in colours other than traditional white. Furthermore, the goods at issue are likely to be requested on the basis of the range of colours in which they come, with a view to matching them in decorative creations. It follows from those considerations that, from the point of view of the relevant Greek-speaking consumer, the sign CHROMA could serve to indicate that the goods concerned in Classes 11 and 19 were available in various colours and that it therefore designated a relevant characteristic in terms of the marketing of the goods in question.

(see paras 33-35, 39, 41)