# C_2005281EN.01000402.xml

| 12.11.2005 | EN | Official Journal of the European Union | C 281/4 |
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12.11.2005

EN

Official Journal of the European Union

C 281/4

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Appeal brought on 28 July 2005 (Fax: 27 July 2005) by Hans-Peter Wilfer against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 Hans-Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Hans-Peter Wilfer

Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-301/05 P)

(2005/C 281/09)

Language of the case: German

An appeal against the judgment delivered on 8 June 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-315/03 between Hans-Peter Wilfer and Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) was brought before the Court of Justice of the European Communities on 28 July 2005 by Hans-Peter Wilfer, represented by A. Kockläuner, lawyer, of Kanzlei Meissner, Bolte & Partner, Widenmayerstraße 48, D-80538 Munich, Germany.

Hans-Peter Wilfer

Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM)

The appellant claims that the Court should:

| 1. | set aside, in its entirety, paragraph 1 of the operative part of the judgment of the Court of First Instance of 8 June 2005 in Case T-315/03 (1) under appeal, and set aside paragraphs 2 and 3 of the operative part, in so far as to order OHIM to pay all of its own costs and those incurred by the applicant; |
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1.

set aside, in its entirety, paragraph 1 of the operative part of the judgment of the Court of First Instance of 8 June 2005 in Case T-315/03 (1) under appeal, and set aside paragraphs 2 and 3 of the operative part, in so far as to order OHIM to pay all of its own costs and those incurred by the applicant;

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| 2. | order OHIM to pay the remainder of the costs of the proceedings. |
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2.

order OHIM to pay the remainder of the costs of the proceedings.

Grounds of appeal and main arguments

In his appeal against the abovementioned judgment, the appellant relies on pleas of procedural irregularities and an infringement of Community law by the Court of First Instance:

| 1. | As regards the question whether, or to what extent, the appellant can be represented and assisted by a patent agent, the Court misinterpreted Article 19 of the Rules of Procedure of the Court of First Instance. Under that provision, the term ‘lawyer’ also covers patent agents provided that their legal system authorises them to represent parties before a court and provided that their national legal order grants them a status within their legal system which, in terms of the rights and responsibilities transferred to them, is comparable to that of a lawyer. |
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1.

As regards the question whether, or to what extent, the appellant can be represented and assisted by a patent agent, the Court misinterpreted Article 19 of the Rules of Procedure of the Court of First Instance. Under that provision, the term ‘lawyer’ also covers patent agents provided that their legal system authorises them to represent parties before a court and provided that their national legal order grants them a status within their legal system which, in terms of the rights and responsibilities transferred to them, is comparable to that of a lawyer.

| 2. | In assessing the questions whether, or to what extent, the attestation concerning the registration of US trade mark 76/302,601 ‘ROCKBASS’ and the new arguments and evidence contained in the appellant's written statement were to be considered in the present proceedings, the Court not only misjudged the scope of the principle of examination of the facts by the Office of its own motion in Article 74 of the Community Trade Mark Regulation (2), but also misapplied the provisions laid down in Article 7(1)(b) and (c) thereof. |
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2.

In assessing the questions whether, or to what extent, the attestation concerning the registration of US trade mark 76/302,601 ‘ROCKBASS’ and the new arguments and evidence contained in the appellant's written statement were to be considered in the present proceedings, the Court not only misjudged the scope of the principle of examination of the facts by the Office of its own motion in Article 74 of the Community Trade Mark Regulation (2), but also misapplied the provisions laid down in Article 7(1)(b) and (c) thereof.

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| 3. | As regards the meaning and grammatical structure of the sign ‘ROCKBASS’, the Court misrepresented or falsified the facts submitted. The Court overlooked the fact that the sign ‘ROCKBASS’ is extremely complex and did not consider that many different grammatical combinations are possible for that mark. Since the Court did not give any reasons for those misrepresentations it also breached its duty to give reasons. |
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3.

As regards the meaning and grammatical structure of the sign ‘ROCKBASS’, the Court misrepresented or falsified the facts submitted. The Court overlooked the fact that the sign ‘ROCKBASS’ is extremely complex and did not consider that many different grammatical combinations are possible for that mark. Since the Court did not give any reasons for those misrepresentations it also breached its duty to give reasons.

| 4. | The Court misrepresented or falsified the facts submitted as regards the possibility of using the goods in Classes 9 and 18 independently of the goods claimed in Class 15 and, since it did not provide any coherent reasons for doing so, it thereby also breached its duty to give reasons. |
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4.

The Court misrepresented or falsified the facts submitted as regards the possibility of using the goods in Classes 9 and 18 independently of the goods claimed in Class 15 and, since it did not provide any coherent reasons for doing so, it thereby also breached its duty to give reasons.

| 5. | As regards the question whether the registered trade mark ‘ROCKBASS’ is directly descriptive of all the goods claimed, the Court misapplied Article 7(1)(c) of the Community Trade Mark Regulation. In so doing, it erroneously based its findings on the point of view of the average observer with certain preconceptions instead of the point of view of the average observer with no preconceptions and, in assessing the question, it took into account only insignificant characteristics and characteristics which are not immediately obvious to the relevant public. |
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5.

As regards the question whether the registered trade mark ‘ROCKBASS’ is directly descriptive of all the goods claimed, the Court misapplied Article 7(1)(c) of the Community Trade Mark Regulation. In so doing, it erroneously based its findings on the point of view of the average observer with certain preconceptions instead of the point of view of the average observer with no preconceptions and, in assessing the question, it took into account only insignificant characteristics and characteristics which are not immediately obvious to the relevant public.

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(1)  OJ 2005 C 193, p. 26.

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(2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

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