10In Case T-335/99, the Court of First Instance held that the Board of Appeal of OHIM had rightly found that the three-dimensional trade mark for which registration is sought was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94, and did so on the following grounds:41 The mark in respect of which registration is sought in the present case consists of the shape and the colour arrangement of a washing machine or dishwasher tablet, that is, of the design of the product itself.42 It is clear from Article 4 of Regulation No 40/94 that both a product's shape and its colours fall among the signs which may constitute a Community trade mark. However, the fact that a category of signs is, in general, capable of constituting a trade mark does not mean that signs belonging to that category necessarily have distinctive character for the purposes of Article 7(1)(b) of Regulation No 40/94 in relation to a specific product or service.43 According to Article 7(1)(b) of Regulation No 40/94, “trade marks which are devoid of any distinctive character” are not to be registered. A mark which enables the goods or services in respect of which registration of the mark has been sought to be distinguished as to their origin is to be considered as having distinctive character. It is not necessary for that purpose for the mark to convey exact information about the identity of the manufacturer of the product or the supplier of the services. It is sufficient that the mark enables members of the public concerned to distinguish the product or service that it designates from those which have a different trade origin and to conclude that all the products or services that it designates have been manufactured, marketed or supplied under the control of the owner of the mark and that the owner is responsible for their quality (see, to that effect, Case C-39/97 Canon [1998] ECR I-5507, paragraph 28).44 It is clear from the wording of Article 7(1)(b) of Regulation No 40/94 that a minimum degree of distinctive character is sufficient to render the ground for refusal set out in that article inapplicable. It is therefore appropriate to ascertain — in an a priori examination not involving any consideration of the use made of the sign within the meaning of Article 7(3) of Regulation No 40/94 — whether the mark applied for will enable the members of the public targeted to distinguish the products concerned from those having a different trade origin when they come to select a product for purchase.45 Article 7( 1 )(b) of Regulation No 40/94 does not distinguish between different categories of trade marks. The criteria for assessing the distinctive character of three-dimensional trade marks consisting of the shape of the product itself are therefore no different from those applicable to other categories of trade marks.46 Nevertheless, when those criteria are applied, account must be taken of the fact that the perception of the relevant section of the public is not necessarily the same in relation to a three-dimensional mark consisting of the shape and the colours of the product itself as it is in relation to a word mark, a figurative mark or a three-dimensional mark not consisting of the shape of the product. Whilst the public is used to recognising the latter marks instantly as signs identifying the product, this is not necessarily so where the sign is indistinguishable from the appearance of the product itself.47 The Board of Appeal rightly points out that, as regards the perception of the public concerned, the products for which trademark registration was sought in the present case, namely washing machine and dishwasher products in tablet form, are widely used consumer goods. The public concerned, in the case of these products, is all consumers. Therefore, in any assessment of the distinctive character of the mark for which registration is sought, account must be taken of the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, by analogy, Case C-210/96 Gut Springenheide and Tusky [1998] ECR I - 4657, paragraphs 30 to 32).48 The way in which the public concerned perceives a trade mark is influenced by the average consumer's level of attention, which is likely to vary according to the category of goods or services in question (see Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26). In that regard, the Board of Appeal rightly held that the level of attention given by the average consumer to the shape and colours of washing machine and dishwasher tablets, being everyday goods, is not high.49 In order to ascertain whether the combination of the tablet's shape and the arrangement of its colours may be perceived by members of the public as an indication of origin, the overall impression produced by that combination must be analysed (see, by analogy, Case C-251/95 SABEL [1997] ECR I-6191, paragraph 23). That is not incompatible with an examination of each of the product's individual features in turn.50 The three-dimensional shape for which registration has been sought ... is one of the basic geometrical shapes and is an obvious one for a product intended for use in washing machines or dishwashers. ...51 As to the tablet's two layers ... , the public concerned is used to seeing different colour features in detergent preparations. ... The coloured particles thus suggest certain qualities, although that does not mean that they can be regarded as a descriptive indication in terms of Article 7(1)(c) of Regulation No 40/94. However, it does not follow from the fact that that ground for refusal is inapplicable that the coloured elements necessarily confer a distinctive character on the mark applied for. Where, as in the present case, the target sector of the public sees the presence of coloured elements as a suggestion that the product has certain qualities, and not as an indication of its origin, there is no distinctive character. The fact that consumers may nevertheless get into the habit of recognising the product from its colours is not enough, in itself, to preclude the ground for refusal based on Article 7(1) (b) of Regulation No 40/94. Such a development in the public's perception of the sign, if proved, may be taken into account only for the purposes of Article 7(3) of Regulation No 40/94....53 ... The use of basic colours, such as blue or green, is commonplace and is even typical of detergents. The use of other basic colours, such as red or yellow, is one of the most obvious variations on the typical design of these products.54 It follows that the three-dimensional mark applied for consists of a combination of obvious features typical of the product concerned....56 Given the overall impression created by the shape of the tablet in question and the arrangement of its colours, the mark applied for will not enable consumers to distinguish the products concerned from those having a different trade origin when they come to select a product for purchase.57 It should be added that the inability of the mark applied for to indicate, a priori and irrespective of the use made of it within the meaning of Article 7(3) of Regulation No 40/94, the product's origin, is not affected by how many similar tablets are already on the market. Consequently, it is not necessary to decide here whether the distinctive character of the mark should be assessed by reference to the date on which the application for registration is filed or the date of actual registration....59 It follows that the Board of Appeal was right to hold that the three-dimensional mark applied for is devoid of any distinctive character.60 The fact that the criteria applied to assess distinctive character, in the case of a three-dimensional mark consisting of the shape of the product itself, are not more rigorous than those applying to other categories of trade marks does not alter that conclusion.61 The factors which led the Board of Appeal to find that the mark applied for was devoid of any distinctive character constitute valid reasons for drawing the same conclusion with regard to the criteria for the assessment of distinctive character applying to all trade marks, whether they are word marks, figurative marks or three-dimensional marks.’
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