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Case C-608/12 P: Appeal brought on 27 December 2012 by Greinwald GmbH against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-333/11 Nicolas Wessang v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
ECLI:EU:UNKNOWN:62012CN0608
62012CN0608
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Official Journal of the European Union
C 63/12
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(Case C-608/12 P)
2013/C 63/20
Language of the case: German
Parties
Appellant: Greinwald GmbH (represented by: C. Onken, Rechtsanwältin)
Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Nicolas Wessang
Form of order sought
—Set aside the judgment of the General Court of 10 October 2012 in Case T-333/11 in so far as the application was granted;
—amend the judgment of the General Court of 10 October 2012 in Case T-333/11 so as to dismiss the application in its entirety;
—order the applicant at first instance to pay the costs.
Pleas in law and main arguments
The appellant submits that the judgment under appeal is incompatible with the legal rationale underlying Article 7(1)(b) and (c) of the Community trade mark regulation (CTMR), in that it is based on the assumption of an increase in the likelihood of confusion owing to the conceptual similarity of the words ‘foods’ and ‘snacks’. According to Article 7(1)(b) and (c) CTMR, signs that are devoid of any distinctive character and descriptive signs are excluded from trade mark protection. Similarities between components of signs that are devoid of any distinctive character or are descriptive cannot therefore be responsible for, or increase, any likelihood of confusion.
It follows from this that a likelihood of confusion presupposes the possible impairment of a trade mark’s function as an indication of origin. However, such a function can be ascribed only to signs and components of signs that have distinctive character. If a component of a sign does not have the function of indicating origin, that function cannot be impaired as a result of the use of a similar component of a sign in a subsequent trade mark.
The principle that components of signs that are devoid of distinctive character cannot give rise to any likelihood of confusion is, after all, reflected in the case-law of the Court, according to which the public will not generally consider a descriptive element forming part of a complex mark to be the distinctive or dominant element of the overall impression of a composite mark.
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Language of the case: German.
OJ 2009 L 78, p.1.
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