IP case law Court of Justice

Judgment of 10 Nov 2016, C-30/15 (Simba Toys), ECLI:EU:C:2016:849.


10 November 2016 (*)

(Appeal — European Union trade mark — Three-dimensional mark in the shape of a cube with surfaces having a grid structure — Application for a declaration of invalidity — Rejection of the application for a declaration of invalidity)

In Case C-30/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 January 2015,

Simba Toys GmbH & Co. KG, established in Fürth (Germany), represented by O. Ruhl, Rechtsanwalt,


the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO), represented by D. Botis and A. Folliard-Monguiral, acting as Agents,

defendant at first instance,

Seven Towns Ltd, established in London (United Kingdom), represented by K. Szamosi and M. Borbás, ügyvédek,

intervener at first instance,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, E. Regan, J.-C. Bonichot, A. Arabadjiev and S. Rodin (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: V. Giacobbo-Peyronnel, Administrator,

having regard to the written procedure and further to the hearing on 2 March 2016,

after hearing the Opinion of the Advocate General at the sitting on 25 May 2016,

gives the following


1        By its appeal, Simba Toys GmbH & Co. KG seeks to have set aside the judgment of the General Court of the European Union of 25 November 2014, Simba Toys v OHIM — Seven Towns (Shape of a cube with surfaces having a grid structure) (T-450/09, EU:T:2014:983, ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) (‘the Board of Appeal’) of 1 September 2009 (Case R 1526/2008-2), relating to cancellation proceedings between the appellant and Seven Towns Ltd (‘the decision at issue’).

 Legal context

2        Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009.

3        However, given the timeframe of the facts, the present dispute remains governed by Regulation No 40/94, at least with regard to those provisions which are not strictly procedural.

4        Article 7 of Regulation No 40/94, entitled ‘Absolute grounds for refusal’, provides:

‘1.      The following shall not be registered:

(b)      trade marks which are devoid of any distinctive character;

(c)      trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;

(e)      signs which consist exclusively of:

(i)      the shape which results from the nature of the goods themselves; or

(ii)      the shape of goods which is necessary to obtain a technical result; or

(iii) the shape which gives substantial value to the goods;


5        Under Article 74(1) of Regulation No 40/94:

‘In proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.’

 Background to the dispute

6        The background to the dispute, as set out in paragraphs 1 to 12 of the judgment under appeal, may be summarised as follows.

7        On 1 April 1996, Seven Towns filed an application for registration of a Community trade mark with EUIPO, relating to the three-dimensional sign reproduced below: