Judgment of the Court of First Instance (First Chamber) of 10 March 2009 – Piccoli v OHIM (Shape of a seashell)

(Case T-8/08)

Community trade mark – Application for a three-dimensional Community trade mark – Shape of a seashell – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character acquired through use – Article 7(3) of Regulation 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) and (3) (see paras 17, 21-25, 38-40)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 September 2007 (Case R 530/2007-1) concerning an application to register as a Community trade mark a three‑dimensional sign consisting of the shape of a seashell.

Information relating to the case

Applicant for the Community trade mark:	G.M. Piccoli Srl
Community trade mark sought:	Three-dimensional mark representing the shape of a seashell seen from four different angles for goods in Class 30 – Appliction No 4522892
Decision of the Examiner:	Application for registration dismissed in respect of ‘preparations of cereals, patisseries, confectionery and ice cream’
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders G.M. Piccoli Srl to pay the costs.