Judgment of the General Court (Sixth Chamber) of 12 July 2012 —
Unión de Cervecerías Peruanas Backus y Johnston v OHIM (shape of a bottle)
(Case T-323/11)
Community trade marks — Absolute grounds for refusal — Application for a three-dimensional trade mark — Shape of a bottle — No distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009
1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 12)
2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 13)
3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional mark consisting in the shape of a bottle (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 14, 32, 33)
4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Three-dimensional marks consisting in the shape of the product — Distinctive character — Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15-17)
5. Community trade mark — Definition and acquisition of the Community trade mark — Prior registration of the trade mark in certain Member States — Effect (see para. 35)
Re:
| ACTION brought against the decision of the Second Board of Appeal of OHIM of 23 March 2011 (Case R 2238/2010‑2) concerning an application for registration of a three-dimensional sign consisting in the shape of a bottle as a Community trade mark. |
Operative part
The Court:
2. | | Orders the Unión de Cervecerías Peruanas Backus y Johnston SAA to pay the costs. |