# C_2012025EN.01003801.xml

| 28.1.2012 | EN | Official Journal of the European Union | C 25/38 |
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28.1.2012

EN

Official Journal of the European Union

C 25/38

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Appeal brought on 24 November 2011 by Rügen Fisch AG against the Judgment of the General Court (Third Chamber) delivered on 21 September 2011 in Case T-201/09 Rügen Fisch AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs); other party to the proceedings: Schwaaner Fischwaren GmbH

(Case C-582/11 P)

(2012/C 25/73)

Language of the case: German

Parties

Appellant: Rügen Fisch AG (represented by: O. Spuhler and M. Geitz, Rechtanwälte)

Other parties to the proceedings:

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

| — | Schwaaner Fischwaren GmbH |
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Schwaaner Fischwaren GmbH

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court of the European Union of 21 September 2011 in Case T-201/09 and annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in appeal case R 230/2007-4; |
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set aside the judgment of the General Court of the European Union of 21 September 2011 in Case T-201/09 and annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in appeal case R 230/2007-4;

| — | in the alternative, set aside the judgment referred to above and refer the case back to the General Court of the European Union; |
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in the alternative, set aside the judgment referred to above and refer the case back to the General Court of the European Union;

| — | order the respondent to pay the costs of the proceedings. |
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order the respondent to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant basis its appeal on the following grounds:

| | In the judgment under appeal, the General Court wrongly assumed that the registration of the word sign SCOMBER MIX as a Community trade mark was precluded by the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009 (1) as a result of the descriptive character of the mark in dispute. |
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In the judgment under appeal, the General Court wrongly assumed that the registration of the word sign SCOMBER MIX as a Community trade mark was precluded by the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009 (1) as a result of the descriptive character of the mark in dispute.

| | The General Court's assumption constitutes an infringement of Article 7(1)(c) in conjunction with Article 51(1)(a) of Regulation No 207/2009. The word sign SCOMBER MIX is not descriptive since, from the point of view of the relevant consumer, it is a purely fanciful name, which is clearly understood to be a trade mark. |
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The General Court's assumption constitutes an infringement of Article 7(1)(c) in conjunction with Article 51(1)(a) of Regulation No 207/2009. The word sign SCOMBER MIX is not descriptive since, from the point of view of the relevant consumer, it is a purely fanciful name, which is clearly understood to be a trade mark.

| | The goods and services covered by the trade mark application at issue were determined with the average consumer in mind. However, the average consumer is not familiar with the Latin language or the zoological term ‘scomber’. The word sign SCOMBER MIX therefore satisfies the minimum level of distinctiveness required under European Union law for the registration of a Community trade mark. |
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The goods and services covered by the trade mark application at issue were determined with the average consumer in mind. However, the average consumer is not familiar with the Latin language or the zoological term ‘scomber’. The word sign SCOMBER MIX therefore satisfies the minimum level of distinctiveness required under European Union law for the registration of a Community trade mark.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

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