Judgments nº T-77/09 of The General Court, March 09, 2010

• Resolution Date: March 09, 2010
• Issuing Organization: The General Court
• Decision Number: T-77/09

In Case T‑77/09,

hofherr communikation GmbH, established in Innsbruck (Austria), represented by S. Warbek, lawyer,

applicant,

v

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

defendant,

ACTION brought against the decision of the First Board of Appeal of OHIM of 4 December 2008 (Case R 1410/2008-1) concerning the international registration, designating the European Community, of the word sign NATURE WATCH,

THE GENERAL COURT (Second Chamber),

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

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 17 February 2009,

having regard to the response lodged at the Court Registry on 5 June 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 rule without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,

gives the following

Judgment

Background to the dispute

1 The applicant, hofherr communikation GmbH, is the proprietor of international registration No 957541 concerning the word mark NATURE WATCH and designating the European Community.

2 On 17 April 2008, the international registration was notified to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Article 3bis of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22).

3 The services for which registration was sought with regard to the European Community, following the restriction made during the procedure before OHIM, fall within Classes 41 and 43 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, in respect of each of those classes, to the following description:

– Class 41: ‘Arranging and organisation of cultural and sportive events; sport camp services; providing recreation facilities; recreation information; rental of audio equipment; rental of sports equipment’;

– Class 43: ‘Hotels; boarding and lodging; rental of tents; tourist homes’.

4 By a decision of the Examiner of 5 August 2008, the application for registration was refused. The Examiner considered that the trade mark for which registration was sought did not comply with Article 7(1)(b) and (c) and (2) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (now Article 7(1)(b) and (c) and (2) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)). On 29 September 2008 the applicant filed a notice of appeal at OHIM against that decision.

5 By decision of 4 December 2008 (‘the contested decision’) the First Board of Appeal of OHIM dismissed the appeal. Taking as its basis the perception which the English-speaking general public of the Community would have of the trade mark for which registration was sought, the Board of Appeal held that the sign NATURE WATCH designates the act of watching, keeping awake and being vigilant for the purpose, inter alia, of observing nature. According to the Board of Appeal, that sign is descriptive of the services covered by the international registration for the purpose of Article 7(1)(c) of Regulation No 40/94, since cultural, sporting and recreational activities may involve nature observation and, consequently, the expression ‘nature watch’ indicates to the public that the services falling within Class 41 and the tent rental services in Class 43 concern equipment suitable for nature observation. As regards the other services in Class 43, that expression indicates that they may facilitate that activity.

6 The Board of Appeal also held that the sign NATURE WATCH would be perceived as a promotional message referring to the fact that the services at issue were offered in the context of enhancing an understanding of nature, rather than as an indication of the commercial origin of those services. It inferred from this that the trade mark applied for was also devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94.

Forms of order sought

7 The applicant claims that the Court should:

– annul the contested decision and...