23.11.2013

Official Journal of the European Union

C 344/52

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(Case C-521/13 P)

2013/C 344/90

Language of the case: German

Parties

Appellant: Think Schuhwerk GmbH (represented by: M. Gail, Rechtsanwalt)

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:

—set aside the judgment of the General Court of 11 July 2013 in Case T-208/12;

—grant the form of order sought at first instance;

—order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Grounds of appeal and main arguments

The grounds of appeal put forward are, essentially, as follows:

In the judicial proceedings, the defendant did not submit a response to the application in due time. As a result, the present appellant submitted an application for judgment by default. The General Court, however, neither ruled on the default nor commented on the application for judgment by default. It also gave the present appellant no possibility of requesting that a hearing be held.

The General Court failed to recognise that a failure to state reasons lies in the fact that the Board of Appeal relied on facts arising from practical experience generally acquired from the marketing of general consumer goods such as shoes, which are known by anyone and are in particular known by the consumers of those goods. The Board of Appeal did not state which facts arise from practical experience acquired from the marketing of those goods. The Office did not explain why the red position mark has no distinctive character even though different designs and colours for shoes and shoelaces existed in the market for shoes.

The General Court failed to recognise that the Board of Appeal infringed the principle of ex proprio motu investigation in its decision. The Office, however, merely referred to the fact that the present appellant had produced no evidence purporting to show that the mark is perceived by the target public as an indication of origin.

4. Incorrect interpretation and application of Article 7(1)(b) of the Community Trade Mark Regulation (CTMR)

The General Court failed to recognise the incorrect interpretation and application of Article 7(1)(b) CTMR by the Office and thereby also incorrectly interpreted and applied that provision.

Contrary to the view taken by the General Court, red aglets which stand out in terms of colour from the rest of the shoelace are quite capable of fulfilling an essential function of indicating origin. The General Court, however, set a higher standard for the mark in the present case than for figurative and word marks. It also failed to recognise the fact that distinctive character does not depend on the mark submitted for registration differing significantly from industry standards.

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