22.11.2008

Official Journal of the European Union

C 301/18

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Appeal brought on 16 September 2008 (by fax on 12 September 2008) by Audi AG against the judgment of the Court of First Instance (Fourth Chamber) delivered on 9 July 2008 in Case T-70/06 Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-398/08 P)

(2008/C 301/32)

Language of the case: German

Parties

Appellant: Audi AG (represented by: S.O. Gillert and Dr F. Schiwek, Rechtsanwälte)

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

Form of order sought

—Set aside the judgment under appeal;

—Set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 December 2005 in Case R 237/2005-2 in so far as it dismisses in part the appeal against the examiner's decision;

—Order the Office for Harmonisation in the Internal Market to pay the costs of proceedings before the Court of Justice, before the Court of First Instance and before the Board of Appeal.

Pleas in law and main arguments

Breach of Article 7(1)B of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark: The Court of First Instance — like the Board of Appeal — did not state sufficient reasons regarding the relevant public in each case. In view of the large number of goods and services to be covered by the trade mark applied for, it was not permissible to take a uniform view across the board.

Further, the Court of First Instance applied too strict a standard when considering distinctive character. The Court of First Instance disregarded the fact that even so-called advertising slogans are essentially word marks. It applied noticeably stricter requirements to establish distinctive character solely on the basis of the fact that in its view the trade mark applied for, ‘Vorsprung durch Technik’, was an advertising slogan.

Breach of Article 63 of Council Regulation No 40/94: The Court of First Instance confined itself to reviewing the decision of the Board of Appeal. New facts put forward by the parties, which were not already covered by the decision of the Board of Appeal were neither admitted nor taken into account in the decision. However, when considering distinctive character, the Court of First Instance referred to a document which was only submitted by the defendant with the defence. The finding that the trade mark applied for, ‘Vorsprung durch Technik’, was devoid of distinctive character was based essentially on the content of that document and the appraisal of that content by the Court of First Instance.

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