«(Community trade mark – Three-dimensional marks – Brown cigar shape and gold ingot shape – Absolute grounds for refusal – Distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94)»

1.. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusing registration – Marks devoid of distinctive character – Assessment of the distinctiveness of a mark – Whether factors which are not the subject of the registration may be taken into account – Not included (Council Regulation No 40/94, Art. 7(1)(b))

2.. Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of distinctive character – Three-dimensional mark – Shape of a brown cigar and shape of a gold ingot (Council Regulation No 40/94, Art. 7(1)(b))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) 30 April 2003 (1)

((Community trade mark – Three-dimensional marks – Brown cigar shape and gold ingot shape – Absolute grounds for refusal – Distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94))

In Joined Cases T-324/01 and T-110/02,

applicants,

v

defendant,

ACTIONS brought against two decisions of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2001 (Case R 599/2001-3) and 16 January 2002 (Case R 538/2001-3), relating to the registration as Community trade marks of a three-dimensional shape representing a brown cigar (Case T-324/01) and a three-dimensional shape representing a gold ingot (Case T-110/02),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: V. Tiili, President, P. Mengozzi and M. Vilaras, Judges,

Registrar: D. Christensen, Administrator,

having regard to the written procedure and further to the hearing on 15 January 2003,

gives the following

First plea: infringement of Article 7(1)(b) of Regulation No 40/94

Arguments of the parties

Findings of the Court

Second plea: infringement of the principle of equal treatment

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber),

hereby:

Tiili

Mengozzi

Vilaras

Delivered in open court in Luxembourg on 30 April 2003.

H. Jung

V. Tiili

Registrar

President