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Case C-453/11 P: Appeal brought on 2 September 2011 by Timehouse GmbH against the judgment of the General Court (Third Chamber) delivered on 6 July 2011 in Case T-235/10 Timehouse GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
ECLI:EU:UNKNOWN:62011CN0453
62011CN0453
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19.11.2011
Official Journal of the European Union
C 340/10
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(Case C-453/11 P)
2011/C 340/16
Language of the case: German
Parties
Appellant: Timehouse GmbH (represented by: V. Knies, Rechtsanwalt)
Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Form of order sought
—set aside the judgment of the General Court of the European Union of 6 July 2011 in Case T-235/10 in its entirety and annul the decision of the First Board of appeal of 11 March 2010 in Case R 0492/2009-1 and order the respondent to pay the costs;
—in the alternative, set aside the judgment of the General Court of the European Union of 6 July 2011 in Case T-235/10 in its entirety and refer the case back to the General Court of the European Union to rehear and decide in the light of the view of the Court of Justice of the European Union and order the respondent to pay the costs of the appeal.
Pleas in law and main arguments
The General Court of the European Union misapplied the material criterion for assessing distinctive character in accordance with Article 7(1)(2) of Regulation (EC) No 207/2009 (1) of the overall appearance of the contested trade mark 7 378 888 for the goods to be registered ‘jewellery; clocks and watches and chronometric instruments’, in that it based its decision solely on an examination of the lack of distinctive character of the individual components of the mark. By drawing conclusions from the (supposed) lack of distinctive character of the individual components of the mark to the lack of distinctive character of the mark applied for as regards its overall appearance, the contested decision was based on the impermissible presumption/conclusion that a mark whose individual components do not have distinctive character cannot have distinctive character in the combination of the components. Since the mark as a whole has distinctive character, however, the decision of the Board of Appeal that was upheld by the General Court was itself wrong.
(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
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