ECLI:EU:T:2008:591

Judgment of the Court of First Instance (Second Chamber) of 17 December 2008 – Somm v OHIM (Shelter for shade) (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: Somm Srl 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.