OHIM’s Board of Appeal rejected a 3D trade mark for toys and games but allowed the mark to be registered in ‘gymnastic and sporting articles not found in other classes; decorations for Christmas trees’ and Class 35: ‘Advertising; business management; business administration; clerical services’.
The Board of Appeal found that the relevant public consisted of average, reasonably well-informed and reasonably observant and circumspect consumers and that, having regard to the nature and the price of the goods at issue, the degree of knowledge of the relevant public could vary from average to high.
The goods at issue, having regard to their description, fall within the category of games and toys. Having regard to that description, the Board of Appeal was fully entitled to find, that the mark applied for ‘does not depart significantly from the norms or customs of the sector’ and that ‘it is common for parlour games and toys (for example the toy version of the game rummy for children) to be packaged and sold in packaging made from different types of material including wooden boxes’.
Similarly, the way of unfolding and assembling the box the shape of which constitutes the mark in question, namely by a system of sliding racks allowing the game to be put away or to be assembled, does not depart significantly from the norms or customs of the sector. It is well known that similar sliding systems exist to enable the goods at issue to be put away and to be assembled.
Seen as a whole the different characteristics of the mark applied for, likewise do not enable the mark applied for to be considered as differing significantly from the norms and customs of the sector.
Within the meaning of Article 7(1)(b) of Regulation No 207/2009, the mark applied for is not distinctive allowing the relevant public to identify the goods at issue as originating from a specific undertaking and, therefore, to distinguish those goods from those coming from other undertakings.