(Case T-351/07)

Community trade mark – Application for Community tri-dimensional mark – Shelter for shade – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Lack of distinctive character acquired by use – Article 7(3) of Regulation No 40/94

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 26, 30)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 28 June 2007 (Case R 1653/2006‑1) concerning an application for registration of a tri-dimensional sign representing a shelter for shade as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:

Community trade mark sought:

Three-dimensional trade mark described as follows: (‘Three-dimensional whole constituted by a large number of tubular posts of metal, placed at a distance from and aligned with each other, tapering and substantially curved at the bend, each having a base line, fixed to the ground, essentially vertical and a line with open extremities slightly inclined towards the top, a large number of tubular parts of metal, placed at a distance from and parallel with each other, fixed on inclined lines of those posts, and a cover to provide shade fixed on said tubular parts, the whole forming a shaded shelter’); for goods in Classes 6 and 19 – Application No 4837746

Decision of the examiner:

Registration refused

Decision of the Board of Appeal:

Appeal dismissed

Operative part

The Court:

1.Dismisses the action;

2.Orders Somm Srl to pay the costs.