Judgments nº T-425/07 of Court of First Instance of the European Communities, November 19, 2009

• Resolution Date: November 19, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-425/07

In Joined Cases T‑425/07 and T‑426/07,

Agencja Wydawnicza Technopol sp. z o.o., established in Częstochowa (Poland), represented by D. Rzążewska, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by O. Montalto and K. Zajfert, acting as Agents,

defendant,

TWO ACTIONS brought against the decisions of the Fourth Board of Appeal of OHIM of 3 September 2007 (Cases R 1274/2006-4 and R 1275/2006-4), concerning the applications for registration of the figurative marks 100 and 300 as Community trade marks,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe and S. Soldevila Fragoso (Rapporteur), Judges,

Registrar: K. Pocheć, Administrator,

having regard to the applications lodged at the Court Registry on 16 November 2007,

having regard to the responses lodged at the Court Registry on 21 February 2008,

having regard to the order of 27 February 2008 joining Cases T-425/07 and T‑426/07 for the purposes of the written and oral procedures,

having regard to the order of 29 April 2009 joining Cases T‑425/07 and T‑426/07 for the purposes of the judgment,

further to the hearing on 26 November 2008,

gives the following

Judgment

Background to the dispute

1 On 15 June 2004, the applicant, Agencja Wydawnicza Technopol sp. z o.o. , filed two Community trade mark applications at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2 The marks for which registration was sought are the figurative signs 100 and 300 reproduced below:

3 The goods and services in respect of which registration of the marks was sought are in Classes 16, 28 and 41 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description for each of those classes:

– Class 16: ‘Posters; albums; booklets; magazines; forms; printed matter; newspapers; calendars; crossword puzzles; rebuses’;

– Class 28: ‘Manipulative puzzles; riddles; puzzles’;

– Class 41: ‘Organisation of competitions; publication of texts’.

4 By letters of 4 April 2006, the examiner informed the applicant that the signs were not eligible for registration for all the goods concerned, in accordance with Article 7(1)(b) and (c) of Regulation No 40/94 (now Article 7(1)(b) and (c) of Regulation No 207/2009). In its replies of 30 May 2006, the applicant maintained its position.

5 On 9 August 2006, the examiner refused to register the signs 100 and 300, on the basis of Article 7(1)(b) and (c) of Regulation No 40/94, for the following goods:

– Class 16: ‘posters, booklets, magazines, printed matter, newspapers’;

– Class 28: ‘Manipulative puzzles; riddles; puzzles’.

The examiner found that those signs were descriptive indications and that the colours and graphic elements used could not affect that conclusion.

6 On 27 September 2006, the applicant filed two appeals against the examiner’s decisions.

7 On 22 February 2007, in accordance with Article 38(2) of Regulation No 40/94 (now Article 37(2) of Regulation No 207/2009), the President of the Fourth Board of Appeal requested the applicant to state within a period of two months that it disclaimed any exclusive right to the figures 100 and 300 included in the marks applied for. By two letters of 15 June 2007, the...