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Case C-20/08 P: Appeal brought on 22 January 2008 by Enercon GmbH against the judgment of the Court of First Instance (Fifth Chamber) delivered on 15 November 2007 in Case T-71/06 Enercon GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
ECLI:EU:UNKNOWN:62008CN0020
62008CN0020
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29.3.2008
Official Journal of the European Union
C 79/19
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(Case C-20/08 P)
(2008/C 79/33)
Language of the case: German
Parties
Appellant: Enercon GmbH (represented by: R. Böhm and U. Sander, Rechtsanwälte)
Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Form of order sought
—Set aside the judgment of the Fifth Chamber of the Court of First Instance of 15 November 2007 (Case T-71/06);
—uphold the forms of order sought at first instance;
—in the alternative, refer the case back to the Court of First Instance;
—order OHIM to pay the costs of both instances.
Grounds of appeal and main arguments
By its first ground of appeal the appellant claims that there has been an infringement of the duty to give reasons under Article 73 of the Community Trade Mark Regulation. Neither in the decision of the Board of Appeal nor in the judgment under appeal of the Court of First Instance were any findings set out or explanations given regarding the shapes which OHIM or the Court of First Instance recognised as being common on the market and in what ways the shape applied for would have to differ from common shapes on the market to be found to be distinctive. In the absence of such findings or explanations it is not conceivable how OHIM or the Court of First Instance could have come to the conclusion that the shape applied for was not distinctive.
By its second ground of appeal the appellant alleges that Article 7(1)(b) of the Community Trade Mark Regulation has been infringed by an assessment of distinctiveness which, in the absence of a statement of the factual basis for its decision, could only have come about as a result of a distortion by the Court of First Instance of the facts presented to it, a matter open to review by the Court of Justice. Contrary to the view of the Court of First Instance in the judgment under appeal, the appellant claims that the shape applied for is distinctive since it is significantly different from the normal shapes found on the market and is not merely a variant of such shapes. Among the relevant public the shape applied for can be recognised and indeed is recognisable as an indication of origin irrespective of its use and without further enquiries or thought.
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