## Facts

- BORCO-Marken-Import Matthiesen GmbH & Co. KG applied to register a Community trade mark consisting of the lowercase Greek letter “α” for Class 33 alcoholic beverages (including wines and wine-based drinks).
- An OHIM examiner refused registration under Article 7(1)(b) of Regulation 40/94, reasoning the mark was a single unmodified letter and would not be perceived as indicating commercial origin by Greek-speaking consumers.
- OHIM’s Fourth Board of Appeal affirmed the refusal, finding the sign devoid of distinctive character.
- BORCO sought annulment in the General Court, which set aside the Board’s decision for failing to conduct a concrete assessment of distinctiveness in relation to the relevant public and the specified goods.
- OHIM appealed to the Court of Justice of the European Union.

## Issues

1. Whether a single-letter mark without graphic modification may be refused under Article 7(1)(b) based on a general presumption that such signs are inherently non-distinctive, without a case-specific factual assessment.
2. Whether OHIM may rely on general assumptions, conjecture, or doubts regarding non-distinctiveness, or instead must examine relevant facts ex officio without shifting the burden to the applicant.

## Decision

- The Court of Justice dismissed OHIM’s appeal and upheld the General Court’s annulment of the refusal decision.
- The Court held that OHIM is not relieved of conducting a fact-based examination of whether the sign can distinguish the goods of one undertaking from those of others, even when the sign is a single letter.
- The Court ordered OHIM to pay the costs.

## Legal Principles

- A sign’s eligibility in principle to function as a trade mark (including “letters”) requires a concrete assessment of whether it is capable of distinguishing the designated goods or services, consistent with Articles 4 and 7(1)(b) of Regulation 40/94.
- Categories of signs that may be more difficult to prove distinctive (including single-letter marks) are not subject to automatic exclusion; difficulty justifies careful scrutiny, not a blanket presumption of non-distinctiveness.
- Registration of a single-letter mark is not conditioned on any special level of linguistic or artistic creativity beyond the ordinary distinctiveness requirement.
- The trade mark authority must examine relevant facts on its own initiative when applying absolute grounds for refusal and may not refuse registration based only on conjecture or mere doubts.
- The authority may not effectively reverse the burden of proof by requiring the applicant to disprove an assumed lack of distinctiveness at the examination stage.

## Conclusion

The Court confirmed that single-letter marks are not inherently barred for lack of distinctiveness and that OHIM must support any refusal under Article 7(1)(b) with a fact-specific analysis tied to the relevant public and the goods at issue, rather than relying on general assumptions or shifting evidentiary burdens to the applicant.


Office for Harmonisation in the Internal Market (OHIM) v. BORCO-Marken-Import Matthiesen GmbH & Co. KG, Case C-265/09 P (C.J.E.U. 2010)