Judgment_paragraph 55 · Roxtec AB v European Union Intellectual Property Office (T-261/18)

55The Court of Justice has thus upheld the General Court’s case-law that the determination of the essential characteristics of the shape at issue is made, in the context of Article 7(1)(e)(ii) of Regulation 2017/1001, with the specific aim of examining the functionality of that shape. The average consumer’s perception is not relevant to the analysis of the functionality of the essential characteristics of a shape. The average consumer may not have the technical knowledge necessary to assess the essential characteristics of a shape and therefore certain characteristics may be essential from his point of view even though they are not essential in the context of an analysis of functionality and vice versa. Accordingly, it must be held that the characteristics of a shape must be determined objectively for the purposes of applying Article 7(1)(e)(ii) of Regulation 2017/1001, on the basis of its graphic representation and any descriptions filed at the time of the application for the trade mark (see, to that effect, judgments of 12 November 2008, Lego Juris v OHIM — Mega Brands (Red Lego Brick), T‑270/06, EU:T:2008:483, paragraph 70, and of 31 January 2018, (Representation of a transdermal patch), T‑44/16, not published, EU:T:2018:48, paragraph 99).