||All England Reporter
|| All ER (D) 119 (Oct)
||Court of First Instance of the European Communities (Second Chamber)
Judges Moura Ramos (President), Pirrung and Meij
||9 October 2002
European Community - Trade marks - Community trade mark - Examiner refusing to register shade of orange with standard reference HKS7 as Community trade mark - Applicant appealing against examiner's decision - Examiner's decision upheld - Applicant contending shade of orange capable of distinguishing goods and services - Whether shade of orange capable of being distinctive - Council Regulation (EC) 40/94, art 7(1)(b).
The colour orange was capable of being registered as a Community trade mark in respect of services within Class42 (technical and business consultancy in the area of plant cultivation, in particular in the seed sector) as colour did not attach to a service as such, nor did it confer any substantive value. The relevant public could therefore distinguish between use of a colour as mere decoration and its use as an indication of the commercial origin of the service. In the absence of, inter alia, any words, the relevant public was able to determine at once whether the colour used in conjunction with the services was the result of an arbitrary choice made by the undertaking supplying those services. It was not necessary for the sign to convey exact information as to the identity of the supplier of the services, provided it enabled the public concerned to distinguish those services it designated from those which had a different commercial origin.
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