Een pallet van onderdelen
GveA, 10 oktober 2008, gevoegde zaken T-387/06 tot en met T-390/06, Inter-Ikea Systems BV tegen OHIM (Nederlandse vertaling nog niet beschikbaar).
Merkenrecht. Weigering beeldmerken die bestaan uit afbeeldingen van een onderdeel van een pallet. GvEA nuanceert de afwijzende beslissing van het HIM: De palletonderdelen zijn beschrijvend voor pallets en palletdingen, maar niet voor, bijvoorbeeld, de exploitatie van octrooirechten en het verlenen van intellectuele eigendomsrechten. Afbeeldingen in het arrest.
“35. It must next be observed that, while the graphic representations in question in the registration applications faithfully reproduce the appearance of one of the main elements of the ‘OptiLedge’ pallet, they do not represent that loading pallet in its entirety, which comprises, as can be seen in paragraph 12 above, at least two main elements each of which has three feet under the rectangular base. As the applicant claims, the marks applied for cannot therefore be regarded as faithful representations of a pallet intended for moving or storing goods.
36. It is however clear that, to the extent that those graphic representations exactly reproduce the shape of one of the main elements of the product which they are to designate or of the product to which the services referred to in paragraph 34 above relate, namely a pallet potentially designed in the same way as the ‘OptiLedge’ pallet, those signs cannot distinguish the goods and services at issue as regards their commercial origin. As the Board of Appeal comments in paragraph 24 of the contested decisions, the signs applied for are a representation of a shape which is likely to be commonly used in trade, since, for technical reasons, use will necessarily be made of that shape whenever loading pallets of the pallet type known as ‘OptiLedge’ are required. For that reason, the relevant public will often encounter that shape, which, since it is likely to appear on pallets with a variety of commercial origins, will be incapable of indicating the commercial origin of the designated goods and services referred to in paragraph 34 above
(…) 42. In that regard, while the competent authority may use only general reasoning for all of the goods or services concerned where the same ground of refusal is given for a category or group of goods or services (BVBA Management, Training en Consultancy, paragraph 37), that does not apply in this case. As stated in paragraphs 39 to 41 above, it is clear from the contested decisions that the Board of Appeal confined itself to examining the distinctive character of the marks applied for solely in relation to pallets, and did not, even in general terms, proceed to an examination of distinctive character in relation to the other goods and services designated in the trade mark registration applications. Consequently, the Office cannot claim that the contested decisions contain general reasoning for all of the goods in question which are unrelated to loading pallets.
(…) 45. In light of all the foregoing considerations, it must be concluded that the contested decisions must be annulled in so far as the Board of Appeal’s finding that the marks applied for were devoid of any distinctive character (…), but not in so far as that finding related to ‘loading pallets of metal’, ‘loading carriers and loading pallets of metal for packaging and transportation purposes’ and ‘metal transport pallets’, in Class 6; ‘goods pallets not of metal’, ‘loading pallets and loading carriers not of metal for packaging and transportation purposes’ and ‘transport pallets not of metal’, in Class 20; and the ‘rental of loading pallets’ services, in Class 39”
Lees het arrest hier.
