Judgment of the General Court (Sixth Chamber) of 26 October 2022 –
Lemken v EUIPO (Shade of sky blue)
(Case T‑621/21) (1)
(EU trade mark – Application for an EU trade mark consisting of a shade of sky blue – Absolute ground for refusal – No distinctive character – Article 7(1)(b) of Regulation (EU) 2017/1001 – No distinctive character acquired through use – Article 7(3) of Regulation 2017/1001)
1. EU trade mark – Procedural provisions – Statement of reasons for decisions – First sentence of Article 94(1) of Regulation 2017/1001 – Scope identical to that of Article 296 TFEU – Recourse by the Board of Appeal to implicit reasoning – Whether permissible – Conditions
(Art. 296 TFEU; European Parliament and Council Regulation 2017/1001, Art. 94(1), first sentence)
(see paragraphs 16, 17)
2. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Concept – Criteria for assessment
(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))
(see paragraphs 22, 23, 29)
3. EU trade mark – Definition and acquisition of the EU trade mark – Signs of which a trade mark may consist – Colours or combinations of colours – Condition – Distinctive character
(European Parliament and Council Regulation 2017/1001, Arts 4 and 7(1)(b))
(see paragraphs 24-28, 30)
4. EU trade mark – Decisions of EUIPO – Principle of equal treatment – Principle of sound administration – EUIPO’s previous decision-making practice – Principle of legality – Need for a stringent and full examination in each individual case
(European Parliament and Council Regulation 2017/1001)
(see paragraphs 38, 39)
5. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Marks constituted by a colour or combination of colours – Mark consisting of a shade of sky blue
(European Parliament and Council Regulation 2017/1001, Art. 7(1)(b))
(see paragraphs 43, 48-51, 60, 61, 67, 68, 102)
6. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Criteria for assessment
(European Parliament and Council Regulation 2017/1001, Art. 7(3))
(see paragraphs 78, 79, 98)
7. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Trade mark devoid of distinctive character throughout the Union – Acquisition through use also throughout the Union
(European Parliament and Council Regulation 2017/1001, Art. 7(3))
(see paragraphs 80-82)
8. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Exception – Distinctive character acquired through use – Probative value of the evidence – Criteria for assessment
(European Parliament and Council Regulation 2017/1001, Art. 7(3))
(see paragraphs 83-85)
Operative part
The Court:
2. | | Orders Lemken GmbH & Co. KG to pay the costs. |