Judgment_paragraph 36 · Unilever NV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-194/01)

36As to the third part of the plea, the Office contends that the differences between the shape for which registration is sought and the basic shapes of round or rectangular wash tablets are not such as to be noted by the consumer. First, it compares the graphic representation of the trade mark applied for to that of a similar round tablet. It observes that where the tablet at issue is depicted from six different views, four of those depictions are identical to those of a round tablet, whilst the ovoid shape is apparent on only two of the depictions. When wash tablets are depicted on packaging, they are usually represented in groups and/or in perspective. In neither of those cases is it possible to discern any difference between the ovoid shape in question and a round shape. As regards the speckles on the surface of the sign, the Office refers to the judgments of the Court of First Instance of 19 September 2001 concerning three-dimensional marks (Case T-335/99 Henkel v OHIM (Rectangular tablet, red and white) [2001] ECR II-2581; Case T-336/99 Henkel v OHIM (Rectangular tablet, green and white) [2001] ECR II-2589; Case T-337/99 Henkel v OHIM (Round tablet, red and white) [2001] ECR II-2597; Case T-117/00 Procter & Gamble v OHIM (Square tablet, pale green and white) [2001] ECR II-2723; Case T-118/00 Procter 8c Gamble v OHIM (Square tablet, white and pale green with green speckles) [2001] ECR II-2731; Case T-119/00 Procter & Gamble v OHIM (Square tablet, white with yellow and blue speckles) [2001] ECR II-2761; Case T-120/00 Procter & Gamble v OHIM (Square tablet, white with blue speckles) [2001] ECR II-2769; Case T-121/00 Procter 8c Gamble v OHIM (Square tablet, white with blue and green speckles) [2001] ECR II-2777; Case T-128/00 Procter 8c Gamble v OHIM (Square tablet with inlay) [2001] ECR II-2785; Case T-129/00 Procter 8c Gamble v OHIM (Rectangular tablet with inlay) [2001] ECR II-2793; hereinafter ‘the judgments of 19 September 2001’). According to those judgments, the fact that there are speckles is not sufficient for a tablet's get-up to be perceived as indicative of a product's origin. The Office asserts that the mark applied for is not capable of distinguishing the relevant products from those with a different origin. The shape concerned is commonplace or, in any event, an obvious variation of a standard round, square or rectangular shape.

Unilever NV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (T-194/01)

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