Joined Cases T-241/05, T-262/05 to T-264/05, T-346/05, T-347/05, T-29/06 to T-31/06

The Procter & Gamble Company

v

Office for Harmonisation in the Internal Market

(Trade Marks and Designs) (OHIM)

(Community trade mark – Applications for three-dimensional trade marks – Square white tablets with coloured floral design – Absolute ground for refusal – Article 7(1)(b) of Regulation (EC) No 40/94 – Absence of distinctive character)

Summary of the Judgment

1.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Three-dimensional marks

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

2.      Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Three-dimensional marks

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

1.      When assessing the habits of the consumer concerned, which must be taken into account for the purposes of assessing the distinctiveness of a trade mark for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, the normal marketing practices of the product in question should be taken into account. Thus, as regards the registration of a three-dimensional mark in the form of washing tablets, account may lawfully be taken of the fact that the washing tablets are usually sold in packaging bearing the product’s name and on which there are often word marks or figurative marks or other figurative features which may include a depiction of the product. Generally, the average consumer’s level of attention to the appearance of products marketed in that way is not high. In such circumstances, it is for the trade mark applicant to show, on the basis of specific and substantiated evidence, that consumers’ habits on the relevant market are different.

(see paras 52-54)

2.      Three-dimensional signs in the form of square white tablets with coloured floral design, registration of which is sought for ‘Washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps’ within Class 3 of the Nice Agreement, are devoid of distinctive character in relation to the products concerned, for the purposes of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark. The addition of a symmetrical sign in the middle of a tablet, such as that represented by each of the designs in question, does not change the tablet’s appearance in any significant way. The combination of the square white shape of the tablets in question with a coloured design, that is, the floral four-, five- or six-petalled images at issue, does not differ significantly from the presentation of the washing tablet which comes readily to mind, in which the various active ingredients are laid out decoratively. Thus, as regards the overall impression produced by the combination of the shape, colours and design of the tablets in question, the latter do not enable the average consumer concerned to identify the trade origin of the goods in question when he makes his selection at the time of purchase.

(see paras 78, 90)