Si considerino i seguenti due marchi figurativi
per sigarette , tabacco e simili.
In via amminstrativa e poi giudiziaria (Trib. UE 5 ottobre 2022, Case T‑502/21, Philip Morris Products SA c. EUIPO nonchè Trib. UE Case T‑501/21, pari data e parti) sono stati giudicati privi di distintività ex art. 7.1.6 reg. 2017 n. 1001.
Potrebbe apparire sorprendente, essendo le immagini non banali e tenendo conto del basso livello di distintività di solito richiesto.
Pensa al contrario il Trib. (riporto la motivazione solo di T‑502/21 ma è simile all’altra):
<< 19 In the present case, it should be noted that the mark applied for represets a combination of black lines, some of which form an angle.
20 In that regard, first, it must be held that, given their simplicity, none of those black lines, taken individually, is likely to present aspects or communicate a message, which would be easily and instantly memorised by the relevant public, which, moreover, the applicant does not suggest.
21 Second, the applicant does indeed submit that, taken together, the black lines making up the mark applied for create, first, a contrasted effect and, second, an illusion of an ‘outer boundary line’ and an illusion of movement forwards. The applicant adds that the perception of that mark would be altered by the angle it is viewed from by the relevant public.
22 However, first of all, it should be noted that the contrasted effect alleged by the applicant results solely from the fact that the mark applied for is in black and white. Such a combination of colours is commonplace, with the result that it cannot, by itself, confer on that mark a characteristic likely to be perceived by the relevant public as an indication of the origin of the goods at issue.
23 Next, even if the mark applied for were capable of creating an illusion of movement or a boundary line, it must be pointed out that such an illusion is perceptible only after a detailed examination of that mark, with the result that that illusion does not constitute an aspect that can be easily and instantly memorised by the relevant public [il punto più interesante].
24 Lastly, it must be stated that the applicant has not adduced any evidence capable of establishing that the change in the perception of the mark applied for resulting from the change in the angle it is viewed from by the relevant public, assuming that that has been established, is such that it constitutes a characteristic likely to be perceived by the relevant public as an indication of the origin of the goods at issue.
25 Third, it should be noted that, contrary to what the applicant suggests, the mark applied for differs from the marks at issue in the cases which gave rise to the judgment of 15 December 2016, Representation of a grey curve and representation of a green curve (T‑678/15 and T‑679/15, not published, EU:T:2016:749). The Court noted in those cases that those marks were reminiscent of both the letter ‘c’ and a crescent moon, which were, moreover, stylised on account of the different shades of colour creating a play of light and shadow, the curves that constitute them being of varying thickness and those curves having a slight twist.
26 In those circumstances, it should be noted that the Board of Appeal correctly found that the mark applied for, considered as a whole, did not represent more than the sum of the lines of which it is composed. Since, as has been pointed out in paragraph 20 above, those lines are not likely to present aspects, or communicate a message, which would be easily and instantly memorised by the relevant public, it must be held, as the Board of Appeal did, that that mark will be perceived by the relevant public as having a decorative purpose.
27 In the third place, it should be borne in mind that, according to the case-law, the notion of general interest underlying Article 7(1)(b) of Regulation 2017/1001 is, manifestly, indissociable from the essential function of a trade mark, which is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him or her, without any possibility of confusion, to distinguish the product or service from others which have another origin (see judgment of 8 May 2008, Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 56 and the case-law cited).
28 Consequently, it must be held that, contrary to what the applicant claims, it does not follow from the notion of general interest underlying Article 7(1)(b) of Regulation 2017/1001 that a mark must be regarded as distinctive solely on the ground that the registration of that mark is not liable to harm the competitors of the proprietor of that mark.
29 Therefore, it must be held that the Board of Appeal was right to find that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation 2017/1001, notwithstanding the references, in the contested decision, to judgments relating to three-dimensional marks.>>
Il marchio denonmnativo TOGETHER. FORWARD è stato deciso dal Trib. UE sempre il 5 ottobre 2022 ,Case T‑500/21.
Analogo esito negativo:
<< In that regard, first, the applicant does not dispute the fact that the mark applied for will be perceived as an advertising slogan whose purpose is to promote the goods at issue. Nevertheless, it maintains that that mark means ‘Collectively (or Jointly). Moving Ahead.’ and that the relevant public could interpret that meaning in different ways following a ‘mental effort’, like, for example, the word mark Vorsprung durch Technik at issue in the case giving rise to the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29).
19 However, it should be noted that the applicant does not specify to what extent the fact that the mark applied for would be understood by the relevant public as meaning ‘Collectively. Moving Ahead.’ rather than ‘jointly progressing’ is such as to call into question the Board of Appeal’s assessment of the distinctive character of that mark. Furthermore, in view of the proximity of those two meanings, it cannot be inferred that that mark, which is composed of two common English words, does not convey a simple, clear and unequivocal message.
20 Furthermore, it should also be noted that, contrary to what the applicant suggests, the mark applied for differs from the word mark Vorsprung durch Technik at issue in the case which gave rise to the judgment of 21 January 2010, Audi v OHIM (C‑398/08 P, EU:C:2010:29). In that judgment, the Court of Justice noted that the General Court had held that that mark could constitute a play on words and be perceived as imaginative, surprising or unexpected, which is not the case here. It had also pointed out that that mark showed a certain originality and resonance and that at least a measure of interpretation would be required in order to perceive a possible promotional message.
21 Consequently, it must be held, as the Board of Appeal did, that the meaning of the mark applied for is not such as to confer any particular originality or resonance on it, to require at least some interpretation or to trigger a cognitive process, notwithstanding the fact, relied on by the applicant, that that mark does not contain any verb and that the word ‘together’ is positioned before the word ‘forward’.
22 Nor is that conclusion called into question by the applicant’s claim that an interpretative effort would be required on the part of the relevant public in order to be able to infer from the meaning of ‘Collectively. Moving Ahead.’ that the goods at issue were, specifically, respectful of the health of the consumers of those goods. As EUIPO maintains, in essence, that fact is not such as to call into question the fact that that meaning will, on its own, be perceived without any effort by that public>>.
