Bayerische Motoren Werke AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) T-145/12, [2013] All ER (D) 73 (May)
According to settled case-law, the marks referred to in Art 7(1)(b) of Council Regulation (EC) 207/2009 were those which were regarded as incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services at issue, thus enabling the consumer who had acquired them to repeat the experience if it proved to be positive, or to avoid it if it proved to be negative, on the occasion of a subsequent acquisition. A minimum degree of distinctive character was, however, sufficient to render the absolute ground for refusal set out in Art 7(1)(b) of the Regulation inapplicable. The distinctive character of a sign should be assessed, first, by reference to the goods or services in respect of which the application for registration had been made and, secondly, by reference to the relevant public’s perception of the sign. Further, where, in the field to which the trade mark related, the relevant public perceived a sign
