C-456/01

OPINION OF MR RUIZ-JARABO — JOINED CASES C-456/01 P AND C-457/01 P, JOINED CASES C-468/01 P TO C-472/01 P AND JOINED CASES C-473/01 P AND C-474/01 P

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 6 November 2003 1

Introduction registration procedure, stating precisely the time with reference to which the distinctive character of a sign must be assessed (i.e. the time when the application is filed or the time when the mark is registered), and must 1. These appeals raise the question whether modify its case-law in relation to three- the small blocks of compressed detergent dimensional shape of goods signs, which with different coloured layers and coloured need to be dealt with in a particular way speckles, which are intended for use in and differently from other registrable signs. washing machines or dishwashers and which are currently widely available for sale, are to be registered, given the effects of Article 7(1)(b) of the Regulation on the Community trade mark. 2

2. Therefore, the question is whether tablets with these particular features actu- ally have the distinctive character required by the European legislation and are thus capable of fulfilling the essential function of a trade mark, namely that of identification.

4. In particular, these cases serve to high- 3. The Court of Justice must further refine light the difficulties in applying to such the main elements of the trade mark three-dimensional trade marks the criteria relating to the absolute grounds for refusal or invalidity, which have been evolved — 1 — Original language: Spanish. inadequately — in respect of word marks or 2 — Council Regulation (EC) No 40/94 of 20 December 1993 on figurative marks. My concern is to point the Community trade mark (OJ 1994 L 11, p. 1), as amended by Council Regulation (EC) No 3288/94 of 22 out that in this area it is hard to separate December 1994, implementing the agreements concluded in the framework of the Uruguay Round (OJ 1994 L 349, p. lack of distinctive character from descrip- 83). tiveness.

(i) the shape which results from the nature of the goods themselves; or '1. The following shall not be registered:

(a) signs which do not conform to the (ii) the shape of goods which is neces- requirements of Article 4; sary to obtain a technical result;

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or 9. Pursuant to Article 54(2), the conse- quence of a declaration of invalidity, total or partial, is that the trade mark is deemed to have had, from the outset, none of its effects.

(iii) the shape which gives substantial value to the goods;

15. The appeals against the Examiner's decisions were dismissed by decisions of 21 September 1999. The Board of Appeal 12. The three-dimensional marks for which found that Article 7(1)(b) of the Regulation registration was sought both consisted of prevented registration of the trade marks rectangular tablets, each composed of two sought, since, in order to be registered, a layers, white and red (Case C-456/01 P), trade mark had to enable the products in and white and green (Case C-457/01 P). respect of which it was filed to be distin- guished by reference to their origin and not by reference to their nature: in the case of a three-dimensional mark which was simply a reproduction of the product, that meant that the shape of the product had to be sufficiently unique to imprint itself easily on 13. The products in respect of which the mind and to stand out from whatever is registration was sought are in Class 3 of normal in the trade. Given the fact that the Nice Agreement, 3 which includes protecting the shape of the product entailed 'washing or dishwashing preparations in a risk that the owner of the mark would be tablet form'. granted a monopoly on it and the need to bear in mind the difference between trade mark law and the law of utility models and designs, the standard for assessing distinc- tive character was higher. In the Board of Appeal's view, in the instant case, the trade marks applied for did not meet those 14. Following the necessary procedures, enhanced requirements, given that the the Examiner, by decisions of 26 January shapes claimed by the applicant were and 15 February 1999, refused the applica- neither particularly special nor unusual but were among the basic shapes typical of the relevant market. Nor did the 3 — Nice Agreement concernine the International Classification arrangement of the colours add any kind of Goods and Services for the Purpose of the Registration of of distinctive feature to the shape. Marks of 15 June 1957, as revised and amended.

— pursuant to Article 7(1 )(b) of Regula- tion No 40/94, a mark has distinctive character if it enables the goods or services in respect of which registration 18. For the purpose of identifying the of the mark has been sought to be person by reference to which the designated distinguished as to their origin. products are assessed, the Court of First Instance started from the premiss that washing machine and dishwasher tablets were widely available on the market and that the relevant public therefore consisted of all consumers. From that it concluded that the distinctive character of the mark should be assessed from the point of view of — For that purpose a minimum degree of an average consumer who was reasonably distinctive character is sufficient to well informed and reasonably observant and circumspect. Since the goods were everyday consumer goods, it could be presumed that the level of attention given 4 — The judgments in Henkel v OHIM, in Case T-337/99 (ECR by the average consumer to the shape and II-2597) and, in summary form, in Case T-335/99 (ECR II- 2581) and Case T-336/99 (ECR II-2589). colours of detergent tablets was not high.

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HENKEL v OHIM

19. Finally, the Court of First Instance recognising the product from its colours is analysed the specific features of the three- not enough, in itself, to preclude the ground dimensional signs for which registration for refusal based on Article 7(1)(b). Such a was sought. development in the public's perception of the sign, if proved, would be taken into account only for the purposes of Article 7 (3) of Regulation No 40/94.

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20. As regards the overall impression Joined Cases C-468/01 P to C-472/01 P and created by the shapes of the tablets in Joined Cases C-473/01 P and C-474/01 P question and the arrangement of their (Proctor & Gamble v OHIM) colours, the Court of First Instance decided that the marks applied for would not enable consumers to distinguish the products con- cerned from those having a different trade origin when they came to select a product for purchase. 22. On 13 October 1998 Procter & Gam- ble Company, established in Cincinnati, Ohio (United States of America), filed a number of applications at the Office for trade marks for three-dimensional signs consisting of (i) square tablets with slightly rounded edges and corners, with the following features:

According to the contested judgment, 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 — two layers, white and pale green (Case Regulation No 40/94, the product's origin C-468/01 P); was not affected by the number of similar tablets already on the market. Conse- quently, it did not deem it necessary in the case before it to decide whether the distinctive character of the mark should be assessed by reference to the date on which — two layers, white with green speckles the application for registration was filed or and pale green (Case C-469/01 P); the date of actual registration.

24. By decision of 17 June 1999, the Examiner refused the applications on the ground that the signs were devoid of any distinctive character. 27. The Board of Appeal also stated that the colours of the marks did not confer distinctive character on them, since white, which was associated with spotless cleanli- ness, was a traditional colour for soap powders, whilst green, which was also a 25. The appeal against those decisions was basic colour, was attractive to the eye and dismissed on 3 March 2000 by the Board of had positive connotations since it was Appeal, which pointed out that it was clear associated with environmental protection. from Article 4 of Regulation No 40/94 that the shape of a product 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 appear- 28. Finally, the Board of Appeal found that ance, as emanating from a specific under- the use of coloured speckles was customary

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in that environment and that not only were to dismiss all the actions brought by Procter coloured speckles appealing to the eye, but & Gamble, for the following reasons. 5 they might also indicate the presence of active ingredients, for which reason other traders must be able to use them for that purpose.

32. First, it set out the applicable general principles and identified a reference person in the same way as in the actions brought by Henkel. 6 29. Procter & Gamble brought actions for annulment before the Court of First Instance against each of those decisions, essentially putting forward arguments based on Article 7(1)(b) of Regulation No 40/94.

As to the different coloured layers, with In the Court of First Instance's view, a speckles, the Court of First Instance pointed coloured layer and speckles were not out that the public concerned was used to sufficient for the tablet's appearance to be seeing different coloured features in clean- perceived as indicative of its origin, since ing preparations. Powder, the form in where various ingredients were to be which such products were traditionally combined, such devices were among the presented, was usually very light grey or most obvious solutions. As to the use of beige and appeared almost white. It often various colours (white and pale green, with contained particles of one or more different coloured speckles), the Court of First colours. Instance observed that the use of basic colours was commonplace and was even typical of detergents, whilst the addition of other basic colours, such as red or yellow, was one of the most obvious variations on the typical design of these products.

As with the earlier cases, the Court stated that manufacturers advertising highlights The Court of First Instance concluded from the fact that those particles indicate the the foregoing that the three-dimensional presence of active ingredients and thus, marks applied for consisted of a combina- although they were not a descriptive tion of obvious features typical of the indication in terms of Article 7(1 )(c) of product concerned. Regulation No 40/94, they suggested that the product had certain qualities and were not an indication of its origin.

34. It went on to make the same findings as those described in points 19 and 20 above.

operator alone of exclusive rights which "provided that the shape displays certain could hinder competition on the market for features that are sufficiently unusual and the goods or services concerned ... . How- arbitrary to enable the relevant consumers ever, the interest that competitors of an to recognise the product, purely on the applicant for a three-dimensional mark basis of its appearance, as emanating from consisting of the product's design may have a specific undertaking". Thus it applied in in being able freely to choose shapes and substance a criterion consonant with the colours for their own products is not in principles set out above.' 7 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 distinc- tive character, protects any interest there may be in keeping available various alter- natives 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 36. As regards the tablets at whose centre different trade origin. there is a slight depression in a different shade (Cases C-473/01 P and C-474/01 P), the Court of First Instance found that the Board of Appeal was right to find that feature insufficient for the tablet's appear- ance to be perceived as indicative of the product's origin, since an addition of that kind was one of the most obvious solutions and did not change the tablet's appearance significantly. Nor was the fact that a triangular shape had been selected for the inlay sufficient to confer distinctiveness on Although the Board of Appeal gave con- the mark applied for because associating siderable weight, in the contested decision, two basic geometric shapes in such a way as to considerations relating to the interest in is seen in the tablet at issue was one of the preventing trade mark law from giving rise most obvious variations on the get-up of to a monopoly on a product, it does not, the product and did not enable the public however, follow that in this case the Board concerned to distinguish the products thus failed to have due regard to the criteria presented from those having a different applicable in assessing the distinctiveness of trade origin. 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 7 — Paragraphs 73 and 74.

38. Although a number of separate actions 41. Both appellants claim that when they have been joined, the main grounds of tried to register them as trade marks, tablets appeal may be dealt with systematically. All for washing machines or dishwashers the appeals rely on the same single plea in existed only to a very limited extent and law, infringement of Article 7(1 )(b) of the therefore were readily distinguishable. The regulation on the Community trade mark, distinctive character of a sign must be whereby the appellants challenge the var- assessed in the light of the circumstances ious factors used by the Court of First prevailing at the time when the application Instance in determining whether the various is filed. In order to ascertain whether a sign signs consisting of multicoloured detergent incorporates typical or commonplace fea- tablets actually had distinctive character. tures, the assessment must refer to the facts known at the time when the application is filed. Both appellants also appear to be suggesting that where the assessment is made at a later stage, such as on registra- tion, that will entail a risk for the applicant that his competitors will have incorporated aspects of his sign in their own products, thus diminishing his sign's distinctive char- 39. It is necessary to start from two acter. premisses: first, it is not disputed — as the judgments under appeal acknowledge — that the regulation does not lay down criteria for assessment which differ accord- ing to the absolute ground for refusal concerned; second, in the present cases no appraisal of technical requirements was 42. The Office's response is that to be carried out pursuant to Article 7(1)(e)(ii) registered as a trade mark, a sign must meet of the regulation. the requisite conditions, both at the time

43. I concur with the Office's reasoning. As it explains, that is the logical outcome if the absolute grounds of refusal in Article 7(1) of the regulation are read in conjunction with Article 51 thereof, which, under the 45. The Office adds that, in order to avoid heading 'Absolute grounds for invalidity', a sign being denied registration because it includes the ground that a trade mark has has been systematically copied in the course been registered in breach of the provisions of the examination procedure, it would of Article 7. The appellants' stance would exclude from its analysis of distinctive mean that a mark would have to be character any cases where the sign was registered but could immediately be used solely for that purpose. annulled pursuant to a declaration of invalidity on the ground that it did not have the necessary distinctive character at that point in time. The intention of the legislature cannot have been so illogical; therefore the assessment of the requisite 46. That argument also appears right to conditions for registration must be made at me: if it relied on Article 7(1)(f) of the the time of registration. regulation, which refers to public policy and morality, or directly invoked the general principle of law proscribing acts committed in bad faith, which is recognised in Article 51(1)(b) of the regulation, the Office could refuse to take account, for the purposes of registration, of any conduct whose sole purpose was to obstruct regis- 44. Admittedly, it may be objected that, if tration of competitors' marks. the appellants' proposition is accepted, namely that the assessment should be made when the application is filed, such signs would have been registered without encountering any ground for refusal. That interpretation must be rejected in view of Article 51(2), which provides that 'where 47. In any event, frequent use by other the Community trade mark has been operators of the same visual components registered in breach of the provisions of would be relevant only if the contested

48. In my opinion, those reasons are sufficient for this part of the plea to be rejected in the terms in which the dispute is stated. However, I consider it appropriate to add that there was nothing to prevent the 50. It will be recalled that there is no registration authorities from taking into suggestion in the contested judgments that account future matters when determining the Court of First Instance undertook the whether a sign was eligible for registration comparative analysis to which the appellant as a trade mark. That occurs, for example, refers. The fact that it did not do so is when a general interest in preserving the moreover one of the main grounds of availability of a mark is taken into challenge which have arisen. The Court of account. That overriding interest had to First Instance, however, preferred to con- be analysed within the framework of Article trast the signs with an image of the ideal 7(1 )(c) of the regulation. Specifically, it is representation of the product. consistent with that rule, since the distinc- tive character (as a category) of a three- dimensional sign consisting of the shape of the product must be assessed. 8A sign with such characteristics is distinctive when it 51. Henkel may well be using this argu- stands out from the usual get-up of the ment to allude to the question of the goods or (which amounts to the same thing) relationship between the absolute grounds when the consumer, on looking at it, does for refusal and the limited extent of the not necessarily have the impression that he protection afforded by a trade mark, as is perceiving it as an example of the relevant recognised by Article 12(b) of the Regula- category or quality. tion. The usual arguments in this regard are that it is unnecessary to take an excessively strict approach in assessing the distinctive 8 — Thar was the approach taken by the Bundesgerichtshof in character of a sign, given that in any event the cases which came before the Court ot Justice as Joined its descriptive components are afforded no Cases C-53/01 to 0 5 5 / 0 1 Linde and Others [ 2 0 0 3 ] ECR I-3161. protection. I have already had occasion to

52. The Court of Justice clearly endorsed 53. Therefore, the Court of First Instance that approach in its judgment in Libertel 10 did not make an error in law in its when it found that Article 6 of the Trade interpretation of Article 7(1)(b) of the Mark Directive, 11 whose content is the Regulation. same as that of Article 12 of the Regulation, concerns the limits on the effects of a Community trade mark once it has been registered. Furthermore, it stated that the consequence of a minimal review of the grounds for refusal at the time when the 54. Procter & Gamble does not agree with application for registration is considered, such a solution and maintains that the on the basis that the risk that certain possibility that consumers may generally operators might appropriate certain signs get into the habit of identifying a product from its colours is a matter for Article 7(1) (b) of Regulation No 40/94 and not for 9 — See points 85 and 86 of my Opinion in Case C-104/00 P Article 7(3) thereof. DKV v OHIM (Companyline) [2002] ECR I-7561. 10 — Case C-104/01 Libertel [2003] ECR I-3793. 11 — First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1). 12 — Paragraphs 58 and 59.

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HENKEL v OHIM

55. In any event, this ground of appeal is 58. For those reasons, these grounds of ineffective, since it purports to challenge an appeal must be rejected. aspect of the Court of First Instance's reasoning which has no impact on the outcome of the case and fails to challenge the proposition, which is clearly correct, that the fact that consumers may get into the habit of recognising the product from its colours is not on its own sufficient to exclude the ground for refusal in Article 7 (1)(b). 3. Grounds of appeal relating to the definition of the consumer's level of atten- tion

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61. Procter & Gamble submits, first, that, of higher value or goods which are less at the time when the application for commonly used, seems to me the correct registration was filed, dishwasher tablets, inference to be drawn from the proposition and even more so washing tablets, were not that as regards the relevant public's percep- everyday consumer goods. At that time tion of the trade mark, the attention of the those goods were still at the high-quality average consumer varies according to the end of the market and, consequently, the category of products or services in ques- degree of attention given by the average tion. 13 consumer of those goods to the get-up was high; second, the appellant does not believe that the attention paid at the time of purchasing a product for everyday consu- mer use is necessarily low; rather, the everyday use of such goods continually attracts the consumer's attention to their 63. In addition, for Procter & Gamble, the get-up and provokes a high degree of time when the product is purchased is not attention. the only relevant time for the purposes of assessing a sign's distinctive character, since, given that the products are sold in packaging which does not correspond to their shape, the public has had a chance to become familiar with a particular get-up as a result of advertising campaigns or by virtue of using the tablets in question. 62. Although definition of the person by reference to whom the distinctive character of a sign is assessed is a matter of law, the precise way in which it is assumed that a given category of products is perceived or the precise qualification warranted by the 64. The appellant raises a question here products, are matters of fact, which may which, although interesting, was not not be reviewed on appeal. Therefore, the addressed before the Court of First Instance finding made in this respect by the Court of and therefore cannot be used to challenge First Instance cannot be reexamined. the contested judgments.

66. Both appellants submit that the Court 69. The fact that, for the purposes of the or First Instance, in finding that the marks test referred to, a no more rigorous applied for were composed of an obvious standard is used than that applied in arrangement of features, applied an incor- relation to other signs does not mean that rect test of their distinctive character. For the method of assessing distinctive charac- Henkel it would have been preferable for ter cannot be adapted to the particular the Court of First Instance to confine itself features of this category of registrable signs. to ascertaining whether those features were The consumer's ability to distinguish the different from the typical ones or whether signs from the product of which they are an they were necessary for technical reasons. intrinsic part, as well as from other similar In Procter & Gamble's submission, the signs, only emerges, by definition, when the Court of First Instance should have asked product is placed on the market. For that whether the shape of the tablets differed reason, the standard advocated by the perceptibly from the usual get-up of such appellants, which consists in deeming those detergents at the material time. unusual signs distinguishable, would give the more assiduous operators a dispropor- tionate advantage, since they would be able to register in their own name the shapes which are easier to manufacture or more readily marketable.

74. It is apparent that the foregoing sub- missions seek to challenge the assessment made by the Court of First Instance of the material components of the signs. In an exercise of that kind, the lower court has absolute discretion to reach its own deci- sions on matters of fact and therefore the 71. Assessment in accordance with Article exercise is not amenable to review on 7(1)(c) would also have the advantage of appeal. removing all doubt as to whether the need to preserve availability may be invoked, which would allow the Examiner to con- sider factors pertaining to the future when assessing whether a shape is eligible to be a trade mark. It is not certain that the need to 75. I am conscious of the fact that in the preserve availability can be raised under legal traditions of the Member States, there Article 7(1)(b) of the Regulation. are certain discrepancies as to the nature of the assessment of the material components of a trade mark. For the purposes of the doctrine of objective normative interpreta- tion, it is a matter of law, inasmuch as the starting point of any analysis does not consist of facts which have been proven in the course of the procedure but of an objectivised ideal reference-point.

72. The appellants also submit that the public perceives the arrangement of colours as an individual feature of the get-up of a To my mind, adopting that approach in the given product. As to the use of a specific sphere of trade marks is not conducive to colour, such as red or green, Henkel the effective administration of justice, since maintains that it is significant that, if one it negates the exceptional and specific colour is used exclusively for the tablets nature of a review on appeal: first, it concerned, they may be associated with the extends the scope for appeal to virtually undertaking of origin. all disputes in which a sign is held not to

76. Henkel submits that the Court of First 78. As I pointed out above, it is by no Instance included in its analysis considera- means certain that considerations of general tions relating to the so-called 'need to interest militating in favour of denying preserve availability'. However, in Henkel's registration to certain signs so that they view, the Windsurfing Chiemsee 14 judg- may remain fully available to all operators ment provides authority for the application (the need to preserve availability) may be of that principle only in respect of Article 7 taken into account for the purposes of (1)(c) of the Regulation, in connection with Article 7(1 )(b) of the Regulation. The the descriptive indications inherent in a purpose of the absolute ground for refusal sign. However, in the case of the tablets at in that provision is to prohibit the registra- issue, neither the colours nor the geome- tion of signs which are devoid of any real trical shapes can be deemed descriptive of distinctive character, that is to say, those the designated product. signs which the average consumer, who is reasonably well informed and reasonably observant and circumspect, cannot identify as reliably indicating the commercial origin of the product. It is, of course, in the general interest to prevent certain operators from appropriating to themselves three-dimen- 77. In any event, Henkel maintains that sional shapes which are useful from an registration as a trade mark of the combi- aesthetic or technical point of view, or from nation of the shape and colours of the monopolising certain signs apt to describe detergent tablets concerned is not precluded the product per se, its actual or supposed by any need to preserve availability. First, qualities and other characteristics, such as the shape is freely chosen by the manufac- where it originates from. Subparagraphs (c) turer, subject to certain technical require- and (e) of Article 7(1) of the Regulation ments. Second, the consumer does not deal with those concerns.

Each of the grounds for refusing registra- tion must be analysed in the light of the general interest on which it is based. 16 82. Despite that, Henkel's complaint can- not be regarded as founded. I agree that, strictly speaking, it may be anomalous to mention the need to preserve availability in the context of Article 7(1)(b) of the 81. In its judgment in Libertei, the Court of Regulation, one point on which I disagree Justice accepted, in the context of Article 3 to some extent with the assertion in the (1)(b) of the Directive, that the registration contested judgments that 'the absolute as trade marks of colours per se, not grounds for refusal set out in Article 7(1) spatially delimited, may mean that a small (b) to (e) of Regulation No 40/94 address number of proprietors would exhaust the entire range of the colours available. Such a monopoly would be incompatible with a 17 — Libertel, cited in point 52 above, paragraph 54. system of undistorted competition, since it 18 — At the hearing, the Office's lawyer put forward an interpretation capable of implying requirements of avail- ability into Article 7(1)(b). It entails taking the view that signs such as basic shapes or colours do not attain a minimum degree of distinctiveness and must therefore remain available to all. However, as the lawyer himself 16 — See Case C-299/99 Philips [2002] ECR I-5475, paragraph admitted, that argument entails reversing the variables in 77. the equation.

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HENKEL v OHIM

the concern of the Community legislature to 84. Nor is it less reliable or more subjective prevent the grant to one operator alone of than, for example, the reference to the exclusive rights which could hinder compe- average consumer, whose supposed percep- tition on the market for the goods or tion is deemed by law to be the yardstick services concerned'. 19 for the Court of Justice. 20 Finally, when it is properly executed, it is in fact objective. In the present case, it is significant that the appellants, who claim that the shapes of the washing tablets were not customary at the time when the application was filed, accept that they are now. That is perhaps the best proof that the test carried out was the right one.

86. Under Article 69(2) of the Rules of Procedure, which applies to appeal pro- ceedings pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs. Consequently, if, as I propose, all the grounds of appeal put 83. That approach is, as I have explained, forward by the appellants in the various particularly pertinent when the eligibility cases are rejected, the appellants must be for registration of three-dimensional signs ordered to pay the costs of the proceedings. consisting of the shape of the product is to be assessed. In such cases, there is no remote point of comparison so long as the product does not exist. 20 — Given that factual data — obtained, for example, from expert reports or surveys of public opinion — although legitimate (see the judgment in Windsurfing Chiemsee, cited in paragraph 76 above, paragraph 53), may only be used as guidance (see the judgment in Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraphs 19 — See point 35 above. 31 to 36).

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87. Since I take the view that none of the grounds of appeal advanced is capable of having any effect on the legality of the contested judgments, I propose that the Court of Justice dismiss all these appeals and consequently order the appellants to pay the costs.

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