11In Case T-129/00, 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:47 As regards household goods, it is clear from Article 4 of Regulation No 40/94 that a product's shape falls 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.48 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).49 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.50 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.51 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.52 It is appropriate to point out that the household goods 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 goods, 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).53 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 pattern of washing machine and dishwasher tablets, being everyday consumer goods, is not high.54 In order to ascertain whether the combination of the shape of the tablet at issue and its pattern 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.55 Since the applicant has not claimed colour in the present case, the mark applied for cannot enable the products to be identified by reference to their origin unless the average consumer, when he sees a rectangular tablet with chamfered edges, speckles and a triangular inlay, will recognise it irrespective of its colour and associate all products presented in that way with the same origin.56 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. 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. Likewise, the chamfered edges are a barely perceptible variant on the basic shape and have no impact on the overall impression made by the tablet.57 As regards the presence of speckles and a darker triangular inlay in the centre of the tablet, it is appropriate to examine, first, the applicant's claim that the Board of Appeal failed to consider the speckles. Although it is the case that the Board of Appeal did not specifically consider them in the contested decision, it nevertheless remarked, when dealing with the ... inlay, that the use of different colours was commonplace for the goods in question ... That statement demonstrates that the Board of Appeal took the view that the speckles were not capable of rendering the mark applied for distinctive, since what was involved was a commonplace feature. The contested decision is therefore sufficiently reasoned in that regard.58 Further, the public concerned is used to seeing light and dark features in detergent preparations. Powder, the form in which such products are traditionally presented, is usually very light grey or beige and appears almost white. As the applicant itself explained at the hearing, powder often contains particles of one or more colours, which may be darker or lighter than the product's basic colour. The advertising carried out by the applicant and other manufacturers of detergents tends to highlight the fact that those particles indicate the presence of various active ingredients. Those 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 of refusal is inapplicable that light and dark features 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 light and dark features as a suggestion that the product has certain qualities, and not as an indication of its origin, there is no distinctive character.59 As regards the fact that, as well as the speckles, the tablet at issue features a[n] ... inlay in the centre of its upper surface, the Board of Appeal's finding that the presence of such an inlay 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 an inlay to the middle of the tablet is one of the most obvious solutions. The fact that the inlay consists of a slight depression in the tablet's centre does not change the tablet's appearance significantly and is therefore not likely to influence consumers' perception.60 Nor is the fact that a ... shape has been selected for the inlay sufficient to confer distinctiveness on the mark applied for. Associating two basic geometric shapes in such a way as is seen in the tablet at issue is one of the most obvious variations on the getup of the product concerned. In the absence of any additional features, capable of having an impact on consumers' perception, that combination of shapes does not enable the public concerned to distinguish the products presented in that way from those having a different trade origin.61 The fact that consumers may nevertheless get into the habit of recognising the product from such a combination of shapes 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 40/94.62 It does not matter in that regard that the specific combination of geometric shapes mentioned above is not currently used for washing machine or dishwasher products. ...63 Given the overall impression created by the combination of the shape and pattern of the tablet in question, 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.64 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....68 It follows that the Board of Appeal was right to hold that the three-dimensional mark applied for is devoid of any distinctive character as regards products falling within class 3 of the Nice Agreement and corresponding to the following description: “washing and bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; preparations for the washing, cleaning and care of dishes; soaps”.’
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