Judgments nº T-281/09 of The General Court, December 16, 2010

• Resolution Date: December 16, 2010
• Issuing Organization: The General Court
• Decision Number: T-281/09

In Case T‑281/09,

Deutsche Steinzeug Cremer & Breuer AG, established in Frechen (Germany), represented by J. Albrecht, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by S. Schäffner, acting as Agent,

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 8 May 2009 (Case R 1429/2008-4), relating to an application for registration as a Community trade mark of the word sign CHROMA,

THE GENERAL COURT (Fifth Chamber),

composed, at the time of the deliberation, of S. Papasavvas, President, V. Vadapalas (Rapporteur) and K. O’Higgins, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the General Court on 17 July 2009,

having regard to the response lodged at the Court Registry on 1 October 2009,

having regard to the reply lodged at the Court Registry on 21 December 2009,

having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the General Court,

having regard to the change in the composition of the Chambers of the General Court,

gives the following

Judgment

Background to the dispute

1 On 6 March 2008, the applicant, Deutsche Steinzeug Cremer & Breuer AG, filed an application for registration of a Community trade mark with 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 Registration as a mark was sought for the word sign CHROMA.

3 The goods in respect of which registration was sought are, inter alia, in Classes 11 and 19 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, for each of those classes, to the following description:

– Class 11 : ‘Sinks, shower trays and bath tubs, wash basins, bidets, urinals, toilets, cisterns, all of ceramic’;

– Class 19: ‘Building materials, not of metal; tiles, mouldings, pipes and fittings for building, all not of metal; ceramic tiles, mosaics and shaped parts for building; Potters’ clay (raw material)’.

4 By decision of 7 August 2008, the examiner rejected the application for registration in respect of the goods in question under Article 7(1)(b) and (c) of Regulation No 40/94 (now Article 7(1)(b) and (c) of Regulation No 207/2009) and Article 7(2) of Regulation No 40/94 (now Article 7(2) of Regulation No 207/2009).

5 On 30 September 2008, the applicant lodged an appeal with OHIM under Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009) against the examiner’s decision.

6 By decision of 8 May 2009 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal on the ground that the mark applied for was descriptive for the purposes of Article 7(1)(c) of Regulation No 207/2009. It found, in essence, that the sign at issue constituted the transliteration into Latin characters of the Greek word ‘χρώμα’ (colour) and that, since it was a descriptive indication of the characteristics of the goods concerned, there was an absolute ground for refusal in Greece and Cyprus. Furthermore, for the same reasons it found that the sign at issue was also devoid of any distinctive character within the meaning of Article 7(1)(b) of that regulation.

Forms of order sought

7 The applicant claims that the Court should:

– annul the contested decision;

– order OHIM to pay the costs.

8 OHIM contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Admissibility

9 In its response OHIM raises a plea that the action is inadmissible under the provisions of Article 44(1)(c) of the Rules of Procedure of the General Court.

10 In its reply, the applicant disputes that argument, stating that it set out, in its application, detailed arguments in support of the pleas in law on which the application is based...