# C_2005243EN.01000601.xml

| 1.10.2005 | EN | Official Journal of the European Union | C 243/6 |
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1.10.2005

EN

Official Journal of the European Union

C 243/6

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Appeal brought on 5 July 2005 by Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered on 14 April 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-260/03 between Celltech R&D Ltd and Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-273/05 P)

(2005/C 243/08)

Language of the case: English

An appeal against the judgment delivered on 14 April 2005 by the Third Chamber of the Court of First Instance of the European Communities in case T-260/03 (1) between Celltech R&D Ltd and Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 5 July 2005 by Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), represented by Arnaud Folliard-Monguiral, acting as Agent.

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The Appellant claims that the Court should:

| 1. | annul the Judgment of the Court of First Instance of 14 April 2005 in Case T-260/03, |
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1.

annul the Judgment of the Court of First Instance of 14 April 2005 in Case T-260/03,

| 2. | dismiss the appeal filed by the Applicant before the Court of First Instance against the decision of the Second Board of Appeal of OHIM of 19 May 2003 (Case R 659/2002 2) concerning an application for registration as a Community trade mark of the word mark CELLTECH, |
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2.

dismiss the appeal filed by the Applicant before the Court of First Instance against the decision of the Second Board of Appeal of OHIM of 19 May 2003 (Case R 659/2002 2) concerning an application for registration as a Community trade mark of the word mark CELLTECH,

| 3. | order the Applicant before the Court of First Instance to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice. |
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3.

order the Applicant before the Court of First Instance to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice.

In the event that the Court of Justice does not uphold the Appellant's main claim under (2), the Appellant would respectfully request the Court of Justice:

| 1. | to annul the Judgment of the Court of First Instance of 14 April 2005 in Case T-260/03, |
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1.

to annul the Judgment of the Court of First Instance of 14 April 2005 in Case T-260/03,

| 2. | to remand the case to the Court of First Instance. |
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2.

to remand the case to the Court of First Instance.

Pleas in law and main arguments:

In its action before the Court of Justice the Office requests that the Judgment of the Court of First Instance be set aside. The Office claims that the decision of the Court of First Instance violated Article 7(1)(b) and (c) CTMR and is vitiated by the failure to give proper reasons in support of the Court's findings. The ground of appeal consists of the five following limbs:

| — | Although the Court of First Instance recognised ‘that at least one meaning of the word mark CELLTECH is “cell technology”’, it incorrectly required the Board of Appeal to give ‘an explanation of the meaning in scientific terms of cell technology’ in order to explain ‘in what way those terms give any information about the intended purpose and nature of the goods and services referred to in the application for registration, in particular about the way in which those goods and services would be applied to cell technology or how they would result from it’; |
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Although the Court of First Instance recognised ‘that at least one meaning of the word mark CELLTECH is “cell technology”’, it incorrectly required the Board of Appeal to give ‘an explanation of the meaning in scientific terms of cell technology’ in order to explain ‘in what way those terms give any information about the intended purpose and nature of the goods and services referred to in the application for registration, in particular about the way in which those goods and services would be applied to cell technology or how they would result from it’;

| — | The Court of First Instance wrongly disregarded the principle following which a mere combination of elements, each of which is descriptive of characteristics of the goods or services in question, without any unusual variations as to syntax or meaning, remains descriptive of those characteristics for the purposes of Article 7(1)(c) CTMR; |
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The Court of First Instance wrongly disregarded the principle following which a mere combination of elements, each of which is descriptive of characteristics of the goods or services in question, without any unusual variations as to syntax or meaning, remains descriptive of those characteristics for the purposes of Article 7(1)(c) CTMR;

| — | The Court's statement that a finding of descriptiveness or of lack of distinctiveness requires a description of the ‘intended purpose’ of the goods and services in question is erroneous as a matter of law. Although the Court recognised that ‘cell technology’ is an ‘area of use’ for the goods and services in question, it wrongly held that the description of such an ‘area of use’ would be insufficient to establish that the sign CELLTECH is descriptive and therefore devoid of distinctiveness; |
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The Court's statement that a finding of descriptiveness or of lack of distinctiveness requires a description of the ‘intended purpose’ of the goods and services in question is erroneous as a matter of law. Although the Court recognised that ‘cell technology’ is an ‘area of use’ for the goods and services in question, it wrongly held that the description of such an ‘area of use’ would be insufficient to establish that the sign CELLTECH is descriptive and therefore devoid of distinctiveness;

| — | The Court incorrectly considered that the description of a process for the production or the supplying of the goods and services in question does not fall within the ambit of Article 7(1)(c) CTMR; |
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The Court incorrectly considered that the description of a process for the production or the supplying of the goods and services in question does not fall within the ambit of Article 7(1)(c) CTMR;

| — | The Court also failed to give reasons in support of the latter finding. |
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The Court also failed to give reasons in support of the latter finding.

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(1)  OJ C 155, 25.06.05, p. 16

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