Judgment of the General Court (Eighth Chamber) of 12 November 2010 – Deutsche Bahn v OHIM (Horizontal combination of the colours grey and red)

(Case T-404/09)

Community trade mark – Application for Community trade mark consisting in a horizontal combination of the colours grey and red – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 207/2009

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 26, 28-37)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 23 July 2009 (Case R-379/2009-1) concerning an application for registration of a colour sign, consisting in the combination of the colours grey and red, as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:	Deutsche Bahn AG
Community trade mark sought:	Trade mark consisting of the combination of the colours grey and red for services in Class 39 – Application No 6733315
Decision of the examiner:	Registration refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. 1. Dismisses the action;

2. 2. Orders Deutsche Bahn AG to pay the costs.