10.9.2011

Official Journal of the European Union

C 269/27

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(Case C-311/11 P)

2011/C 269/50

Language of the case: English

Parties

Appellant: Smart Technologies ULC (represented by: M. Edenborough QC, T. Elias, Barrister, R. Harrison, Solicitor)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The appellant seeks an order that:

—the Judgment of 13 April 2011 in Case T-523/09 Smart Technologies v OHIM (WIR MACHEN DAS BESONDERE EINFACH) be set aside;

—The Decision of the Board of Appeal of OHIM of 29 September 2009 be altered to state that the mark applied for possesses sufficient distinctive character such that no objection to its registration may be raised under Article 7(1)(b) of Regulation No. 207/2009;

—In the alternative, that the Decision of the Second Board of Appeal of OHIM of 29 September 2009 be annulled;

—The Defendant pay to the Appellant the Appellant's costs of and occasioned by this appeal and of the proceedings before the General Court and the Board of Appeal.

Pleas in law and main arguments

The Appellant contests the Judgment of the General Court on the following grounds:

—The General Court did not analyse the distinctiveness of the Appellant’s application on its own terms, but by reference as to whether it was or was not a ‘mere’ advertising slogan. The Appellant submits that this is wrong in law and that the correct approach is to analyse distinctiveness by reference to the relevant goods and service and the relevant public. To conclude that there is no distinctive character in the Application because the Application is a mere advertising slogan is to carry out the wrong test as set out in established case law.

—The General Court erred in law by considering that it is harder to establish distinctiveness in relation to an advertising slogan than in relation to any other form of word mark.

—The General Court erred in law in asserting that it was entitled to assume as a well-known fact a matter which required to be proved by evidence, i.e. that consumers do not accord trade mark value to marketing claims.

—The Appellant finally submits that a mark need have only a minimum degree of distinctive character in order to render refusal under Article 7(1)(b) of Council Regulation (EC) No 207/2009 on the Community trade mark inapplicable.

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Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

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