Judgment of the General Court (Fourth Chamber) of 27 June 2017 — Flamagas v EUIPO — MatMind (CLIPPER)
(Case T‑580/15)
(EU trade mark — Invalidity proceedings — Three-dimensional EU trade mark — Shape of a lighter with a lateral fin, featuring the word element CLIPPER — Shape necessary to obtain a technical result — No distinctive character — Article 7(1)(b) and (e)(ii) of Regulation (EC) No 207/2009 — No description of the mark in the application for registration)
1. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result — Concept — Interpretation in the light of the public interest underlying each of them
(Council Regulation No 207/2009, Arts 7(1)(e)(ii), and 52(1)(a))
(see paras 21-23)
2. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result — Concept — Existence of other shapes allowing the same technical result to be obtained — Not relevant to the ground for refusal
(Council Regulation No 207/2009, Arts 7(1)(e)(ii), and 52(1)(a))
(see paras 24, 59)
3. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Signs which consist exclusively of the shape of goods which is necessary to obtain a technical result — Identification of the essential characteristics of a three-dimensional sign
(Council Regulation No 207/2009, Arts 7(1)(e)(ii), and 52(1)(a))
(see paras 25-27)
4. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(e)(ii) of Regulation No 207/2009 — Shape of a lighter with a lateral fin, featuring the word element CLIPPER
(Council Regulation No 207/2009, Arts 7(1)(e)(ii), and 52(1)(a))
(see paras 37-40, 49, 51-53, 61)
5. EU trade mark — Definition and acquisition of the EU trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional trade marks consisting of the shape of the product itself — Distinctive character — Criteria for assessment
(Council Regulation No 207/2009, Arts 7(1)(b), and 52(1)(a))
(see paras 68-70)
6. EU trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(b) of Regulation No 207/2009 — Exception — Distinctive character acquired through use — Criteria for assessment
(Council Regulation No 207/2009, Arts 7(1)(b), and (3), and 52(2))
(see para. 83)
Re:
| ACTION brought against the decision of the First Board of Appeal of EUIPO of 30 July 2015 (Case R 924/2013-1) relating to invalidity proceedings between MatMind and Flamagas. |
Operative part
The Court:
2. | | Orders Flamagas, SA to pay the costs. |