Case T-281/02

Norma Lebensmittelfilialbetrieb GmbH & Co. KG

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Word mark ‘Mehr für Ihr Geld’ – Absolute grounds for refusal – Distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94)

Summary of the Judgment

1.      Community trade mark – Definition and acquisition of the Community trade mark – Signs capable of constituting a mark – Signs also used as advertising slogans – Condition – Distinctive character

(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 any distinctive character – Word sign ‘Mehr für Ihr Geld’

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

1.      Registration, under Regulation No 40/94 on the Community trade mark, of a trade mark which consists of signs or indications that are also used as advertising slogans, indications of quality or incitements to purchase the goods or services covered by that mark is not excluded as such by virtue of such use. However, a sign which fulfils functions other than that of a trade mark in the traditional sense of the term is distinctive for the purposes of Article 7(1)(b) of Regulation No 40/94 only if it may be perceived immediately as an indication of the commercial origin of the goods or services in question, so as to enable the relevant public to distinguish, without any possibility of confusion, the goods or services of the owner of the mark from those of a different commercial origin.

(see para. 25)

2.      Under Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, the word sign ‘Mehr für Ihr Geld’, registration of which is sought for cleaning materials and food for everyday consumption in Classes 3, 29 and 30 of the Nice Agreement, is devoid of any distinctive character. The mark applied for will be perceived immediately by the target public, which is German-speaking, as a mere promotional formula or a slogan which indicates that the goods in question offer consumers an advantage in terms of quantity and/or quality as against competing goods. In that regard, the element ‘Mehr’ (‘more’) is laudatory for the sake of advertising, the purpose being to highlight the positive qualities of the goods or services for the presentation of which that element is used.

(see paras 27, 29, 34)