Judgment of the Court of First Instance (Fifth Chamber) of 15 November 2007 – Enercon v OHIM (Wind turbine)

(Case T-71/06)

Community trade mark – Application for a three-dimensional Community trade mark depicting the outer casing of the nacelle of a wind turbine – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) and (3) of Regulation (EC) No 40/94

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 26, 31)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 30 November 2005 (Case R 179/2005-2) refusing registration of a three-dimensional mark (a section of a wind turbine in the form of an American football) as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:	Enercon GmbH
Community trade mark sought:	Three-dimensional mark representing the outer casing of the nacelle of a wind turbine for goods in Class 7 – Application No 2496743
Decision of the Examiner:	Refusal of registration
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Enercon GmbH to pay the costs.