11In Case T-118/00, the Court of First Instance held that the OHIM Board of Appeal had rightly concluded 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.52 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.53 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).54 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.55 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.56 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.57 It is appropriate to point out that the products in respect of which the trade mark was sought in the present case 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).58 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). The level of attention given by the average consumer to the shape and colours of washing machine and dishwasher tablets, being everyday consumer goods, is not high.59 In order to ascertain whether the combination of the shape of the tablet at issue 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.60 The three-dimensional shape for which registration has been sought, namely a square tablet, is one of the basic geometrical shapes and is an obvious one for a product intended for use in washing machines or dishwashers. The slightly rounded corners of the tablet are dictated by practical considerations and are not likely to be perceived by the average consumer as a distinctive feature of the shape claimed, capable of distinguishing it from other washing machine or dishwasher tablets.61 As to the tablet's two layers, one of which is white with green speckles and the other green, 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, on its own, 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....63 Second, the Board of Appeal's finding that the presence of a coloured layer and speckles is not sufficient for the tablet's appearance to be perceived as indicative of the product's origin is justified. Where various ingredients are to be combined in a washing machine or dishwashing product in tablet form, adding speckles or layers is one of the most obvious solutions.64 As regards the use of the colour green, it must be observed that 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. The same is true of the various shades of those colours. For that reason, the applicant's argument that the mark applied for is distinctive because one of the layers of the tablet is “pale green” must be dismissed65 It follows that the three-dimensional mark applied for consists of a combination of obvious features typical of the product concerned.66 It should be added that it is possible to obtain different combinations of those features by varying the basic geometric shapes and by adding to the product's basic colour another basic colour either as a layer in the tablet or as speckles. The ensuing differences in the appearance of the various tablets are not sufficient to enable each of those tablets to function as an indication of the product's origin, inasmuch as those differences are, as in the present case, obvious variations on the product's basic shapes.67 Given the overall impression created by the shape of the tablet in question and the arrangement of its colours, the mark applied for does not enable consumers to distinguish the products concerned from those having a different trade origin when they come to select a product for purchase.68 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....73 As regards the applicant's arguments concerning the Board of Appeal's consideration of the need to keep the shape and colours of the tablet at issue available, it must be observed that the absolute grounds for refusal set out in Article 7(1)(b) to (e) of Regulation No 40/94 address the concern of the Community legislature to prevent the grant to one operator alone of exclusive rights which could hinder competition on the market for the goods or services concerned (see, as regards the ground of refusal relating to the descriptive nature of the sign, the judgment of the Court of Justice in Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-2779, paragraph 25). However, the interest that competitors of an applicant for a three-dimensional mark consisting of the product's design may have in being able freely to choose shapes and colours for their own products is not in itself a ground for refusing registration of such a mark, nor a criterion sufficient in itself for the assessment of the mark's distinctive character. Article 7(1)(b) of Regulation No 40/94, in excluding the registration of signs devoid of any distinctive character, protects any interest there may be in keeping available various alternatives for a product's design only to the extent to which the design of the product in respect of which registration is sought is not capable, a priori and irrespective of the use made of it within the meaning of Article 7 (3) of Regulation No 40/94, of functioning as a trade mark, that is to say, of enabling the public concerned to distinguish the product concerned from those having a different trade origin.74 Although the Board of Appeal gave considerable weight, in the contested decision, to considerations relating to the interest in preventing trade mark law from giving rise to a monopoly on a product, it does not, however, follow that in this case the Board failed to have due regard to the criteria applicable in assessing the distinctiveness of the mark applied for. In paragraph 11 of the contested decision, the Board of Appeal states that a product's shape may be registered as a Community trade mark “provided that the shape displays certain features that are sufficiently unusual and arbitrary to enable the relevant consumers to recognise the product, purely on the basis of its appearance, as emanating from a specific undertaking”. Thus it applied in substance a criterion consonant with the principles set out above.’
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