Judgment of the Court of First Instance (Seventh Chamber) of 16 September 2009 – Alber v OHIM (hand grip)

(Case T-391/07)

Community trade mark – Application for a three-dimensional Community trade mark – Hand grip – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) – Duty to give reasons – Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) – Principle of examination of the facts of its own motion – Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation 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 40/94, Art. 7(1)(b)) (see paras 50-62)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 16 August 2007 (Case R 361/2007-4) and against the decision of the examiner of OHIM of 16 January 2007 in that case, in so far as it rejects Community trade mark application No 4396727 for certain goods covered by that mark.

Information relating to the case

Applicant for the Community trade mark:	Alfons Alber
Community trade mark sought:	Three‑dimensional trade mark representing a hand grip in respect of goods in Classes 6 and 8 – Application No 4396727
Decision of the Examiner:	Registration partially refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Alfons Alber to pay the costs.