16.4.2018

Official Journal of the European Union

C 134/13

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(Case C-698/17 P)

(2018/C 134/17)

Language of the case: German

Parties

Appellant: Toni Klement (represented by: J. Weiser, Rechtsanwalt)

Other party to the proceedings: European Union Intellectual Property Office (EUIPO)

Form of order sought

The appellant claims that the Court should:

1.set aside the contested judgment of the General Court of 10 October 2017 in Case T-211/14 RENV; and

2.order the respondent to pay the costs.

Grounds of appeal and main arguments

The appellant relies, in essence, on three grounds of appeal.

In his first ground of appeal, the appellant argues that the statement of reasons in respect of the finding that the three-dimensional mark at issue has a distinctive character is inadequate. The judgment under appeal, he submits, does not provide any statement of reasons whatsoever as to why the three-dimensional mark at issue has a particularly high degree of distinctiveness, although its shape is purely technical. In that regard, the statement of reasons in the judgment is not clear and comprehensible in respect of an essential point and is therefore legally defective.

In his second ground of appeal, the appellant argues that the statement of reasons for the finding that the word element ‘Bullerjan’, added to the mark at issue when in use, has a distinctive character is contradictory and inadequate. The judgment under appeal, he contends, failed to state what degree of distinctiveness the General Court attributed to the added word element. Without a finding as to the degree of distinctiveness of the added element, it is impossible to make a finding as to whether the distinctiveness of the mark at issue had been influenced by that element. The judgment under appeal is also, he argues, contradictory in that regard. The General Court thus, on the one hand, took the view that the word element makes it easier to determine the commercial origin of the goods, while, on the other hand, it stated that that element has no effect on the distinctiveness of the three-dimensional mark at issue. A facilitation of determination of commercial origin and an absence of effect on the degree of distinctiveness are, however, mutually exclusive.

In his third ground of appeal, the appellant argues that an incorrect legal test was applied in determining the distinctiveness of the three-dimensional mark at issue. For the purpose of determining the degree of distinctiveness of a three-dimensional mark, the protected shape has to be compared with the shapes available on the market. The General Court, however, bases its reasoning, not on the available shapes, but on ‘the shape of an oven in general’. Such an average shape of an oven does not, however, exist.

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