On 23 November 2004, the Court of First Instance (CFI) gave its judgment in Frischpack v OHIM (Forme d'une boîte de fromage) Case T-360/03.
The applicant sought to alter and then annul the contested decision made by the Board of Appeal in so far as it refers to cheese slices in large packs, not intended for the final consumer, after being denied registration of a 3D shape packaging for cheese (Class 29 of the Nice Agreement). The applicant argued that the Board of Appeal had not complied with Article 7(1)(b) of Regulation No 40/94 in failing to have regard to the distinctive character of the mark applied for.
The applicant noted that the distinctive character of a mark depends on the goods for which registration is sought (in this case, foodstuffs in sliced form, in particular slices of cheese) and the relevant public. It argued that the Board of Appeal erred in defining the relevant public as the general public where it was in fact the wholesale trade, who are able to identify the distinctive character of the shape for the packaging.
OHIM defended itself on the grounds that:
- The applicant should not be allowed to change the subject matter in the proceeding, and that the limitation to the wholesale trade, was not apparent from the list of goods which accompanied the application for registration.
- The applicant had not proved the difference between the distinctiveness of the mark to the trade as opposed to the general public.
The CFI dismissed the applicant’s appeal in holding that the definition of the public does not change the subject matter of trade mark for Class 29 of the Nice Agreement. The trade mark sought was lacking in distinctiveness. Further, since cheese is a staple product aim ed at the average consumer, the distinctiveness of the mark should be based on the perspective of the consumer.
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