27.8.2011

Official Journal of the European Union

C 252/12

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(Case C-222/11 P)

2011/C 252/24

Language of the case: German

Parties

Appellant: Longevity Health Products, Inc (represented by: J. Korab, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Performing Science LLC

Form of order sought

—Declare the appeal by the company Longevity Health Products, Inc admissible;

—Set aside the judgment of the General Court of 9 March 2011 in Case T-190/09;

—Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

The restriction of the right to register a mark can be justified only in the public interest, for example in order to avoid a possible deception of certain trade circles. That can however be excluded in the present case because both experts and lay people are able to distinguish between the trade mark wording 5 HTP and the systematic designation for 5-hydroxy-tryptophan.

Experts such as chemists and veterinary surgeons are aware that even minor changes in chemical nomenclature terms or chemical formulae could lead to significant differences in substance structure. That circle of persons would therefore without further consideration continue to use the correct chemical designation, which is not the same as the trade mark.

‘Informed persons’, that is lay people and consumers interested in the products concerned, are also aware that the designations of different substances drawn from chemical nomenclature may differ only slightly, but that a minimal name difference is in fact associated with massive differences in the pharmacological, chemical or physical characteristics of those substances.

Lay persons who are not interested in the products concerned are in any case not able to recognise any connection between the trade mark name 5 HTP and the substance 5-hydroxy-tryptophan and therefore cannot also be misled thereby.

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