# C_2007042EN.01001202.xml

| 24.2.2007 | EN | Official Journal of the European Union | C 42/12 |
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24.2.2007

EN

Official Journal of the European Union

C 42/12

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Appeal brought on 18 December 2006 by PTV Planung Transport Verkehr AG against the judgment delivered on 10 October 2006 in Case T-302/03 PTV Planung Transport Verkehr AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-512/06 P)

(2007/C 42/21)

Language of the case: German

Parties

Appellant: PTV Planung Transport Verkehr AG (represented by: Dr. F. Nielsen, Rechtsanwalt)

Appellant:

Other party to the proceedings: Office for Harmonisation in the Internal Market

Other party to the proceedings:

Form of order sought

| — | Set aside the judgment of the Court of First Instance of the European Communities (Second Chamber) of 10 October 2006 in Case T-302/03; |
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Set aside the judgment of the Court of First Instance of the European Communities (Second Chamber) of 10 October 2006 in Case T-302/03;

| — | Order the defendant and respondent to pay the costs. |
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Order the defendant and respondent to pay the costs.

Pleas in law and main arguments

The judgment of the Court of First Instance of 10 October 2006 infringes Article 7(1)(b) of Regulation No 40/94 (1). The Court of First Instance wrongly considered that there is a ‘specific and direct relationship’ between the designation ‘map&guide’ and the ‘computer software’ product and ‘computer programming’ services and that the designation ‘map&guide’ allows for an ‘immediate identification’ of that product and those services (paragraph 40 of the judgment). Furthermore, the Court of First Instance erred in law when it assumed that the sign ‘map&guide’ enables the relevant public ‘to establish immediately, and without reflection, a specific and direct relationship with the computer software [product] and the computer programming services for computers providing the function of (city) maps and (travel) guides’ (paragraph 47 of the judgment). Finally, it is claimed in the judgment that the ‘computer software’ product group and the ‘computer programming’ services group may also include goods and services which have the function of providing (city) maps and (travel) guides.

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The interpretation of Article 7(1)(b) of Regulation No 40/94 adopted by the Court of First Instance in the judgment is incorrect. Contrary to the assumption of the Court of First Instance the mark applied for does not lack distinctive character. The mark applied for is not descriptive. A ‘specific and direct relationship’ and an ‘immediate identification’ may only be assumed to exist if the term at issue is one which directly designates the product or services in question or describes characteristics which ‘attach to’ the particular goods or services immediately or per se. That does not apply to the designation ‘map&guide’. It neither designates the ‘computer software’ product or the ‘computer programming’ services directly nor makes a statement regarding an essential characteristic which is immediately associated with the product or services. The public does not have the opportunity ‘to establish immediately, and without reflection, a specific and direct relationship with the computer software [product] and the computer programming services for computers providing the function of (city) maps and (travel) guides’. Furthermore, neither the ‘computer programming’ services nor the ‘computer software’ product can ‘provide’ the function of a (city) map or a (travel) guide.

The connection which the Court of First Instance in the judgment assumed to exist between the designation ‘map&guide’ and the specifically referred to ‘computer software’ product and ‘computer programming’ services is not present at the outset, but is only artificially contrived.

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(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

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