23.2.2008

Official Journal of the European Union

C 51/31

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(Case C-513/07 P)

(2008/C 51/53)

Language of the case: English

Parties

Appellant: AGC Flat Glass Europe SA, formerly Glaverbel SA (represented by: S. Möbus and T. Koerl, lawyers)

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

Form of order sought

The appellant claims that the Court should:

—annul the judgment of the Court of First Instance of 12 September 2007 in case T-141/06 concerning the Community trade mark application No 3183068;

—order the Defendant to pay the costs.

Pleas in law and main arguments

The Appellant submits that the appealed judgment of the Court of First Instance is based on a wrong intepretation of Article 7(3) of the Community Trade Mark Regulation (hereinafter ‘CTMR’) caused by a wrong assessment of the target public and a wrong assessment of the territory which has to be considered.

1.Contrary to the assessment of the Court of First Instance the target public consists of specialists of the glass industry only. The Court of First Instance thus incorrectly applied Article 7(3) CTMR in respect of the assessment of the target public.

2.Contrary to the assessment of the Court of First Instance the Defendant incorrectly examined the evidence provided in respect of the acquired distinctiveness for each member state separately as this apparently contradicts Article 7(3) CTMR requiring an acquired distinctiveness through use throughout the Community. What the Defendant would have been required to do — instead of assessing the number of member states — is to look at the provided evidence as a whole and to assess whether it builds a coherent picture of sustained use in a sufficiently large geographical area over a sufficiently long period of time before the filing date.

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Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark (OJ L 11, 14.1.1994, p. 1).

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