Case T-547/08

X Technology Swiss GmbH

v

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

(Community trade mark – Application for a Community trade mark – Orange colouring of the toe of a sock – Absolute ground for refusal – Absence of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009))

Summary of the Judgment

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character

(Council Regulation No 40/94, Art. 7(1)(b))

A sign consisting of an orange colouring of the toe of a sock, in respect of which registration is sought for ‘Clothing, namely hosiery, socks and stockings’ in Class 25 of the Nice Agreement is devoid of distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. By reason of the absence of any significant divergence from the norms or customs of the hosiery sector, the mark applied for would be perceived by the relevant public, consisting of all end consumers which have a low degree of attentiveness, as a decorative element.

(see paras 41, 45, 59)