# C_2015262EN.01000602.xml

| 10.8.2015 | EN | Official Journal of the European Union | C 262/6 |
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10.8.2015

EN

Official Journal of the European Union

C 262/6

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Appeal brought on 20 May 2015 by ultra air GmbH against the judgment of the General Court (Third Chamber) delivered on 9 March 2015 in Case T-377/13 ultra air GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

ultra air GmbH

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

(Case C-232/15 P)

(2015/C 262/09)

Language of the case: German

Parties

Parties

Appellant: ultra air GmbH (represented by: C. König, Rechtsanwalt)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Donaldson Filtration Deutschland GmbH

Other parties to the proceedings:

Form of order sought

Form of order sought

| — | Set aside the judgment of the General Court of the European Union of 9 March 2015 in Case T-377/13 in so far as the General Court did not annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 May 2013 (Case R 1100/2011-4); |
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Set aside the judgment of the General Court of the European Union of 9 March 2015 in Case T-377/13 in so far as the General Court did not annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 May 2013 (Case R 1100/2011-4);

| — | order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the appellant’s costs. |
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order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the appellant’s costs.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant puts forward two pleas in law:

First plea in law: Infringement of Article 7(1)(c) of Regulation No 207/2009 (1)

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| (a) | Article 7(1)(c) of Regulation No 207/2009 has been infringed, first, in so far as the allegedly descriptive meaning of the mark ‘ultra.air ultrafilter’, in the sense of ‘air of extremely high quality obtained through ultrafilters’, cannot, according to paragraphs 18 and 19 of the judgment under appeal, be derived directly and without further consideration from the mark. In paragraph 19, the General Court found that ‘ultra.air’ as such has no specific meaning and describes neither a quality or nature. The General Court arrived at the allegedly descriptive meaning of the mark only by means of an assumption that the relevant public would not assess the name ‘ultra.air’ as it stands, but would supplement it with words that describe a quality, such as ‘pure’ or ‘refined’. |
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(a)

Article 7(1)(c) of Regulation No 207/2009 has been infringed, first, in so far as the allegedly descriptive meaning of the mark ‘ultra.air ultrafilter’, in the sense of ‘air of extremely high quality obtained through ultrafilters’, cannot, according to paragraphs 18 and 19 of the judgment under appeal, be derived directly and without further consideration from the mark. In paragraph 19, the General Court found that ‘ultra.air’ as such has no specific meaning and describes neither a quality or nature. The General Court arrived at the allegedly descriptive meaning of the mark only by means of an assumption that the relevant public would not assess the name ‘ultra.air’ as it stands, but would supplement it with words that describe a quality, such as ‘pure’ or ‘refined’.

| (b) | Secondly, Article 7(1)(c) of Regulation No 207/2009 has been infringed with respect to goods constituting ‘liquid-filtering machinery and apparatus’ in that the divergent descriptive meaning of ‘ultra.air ultrafilter’ in the sense of ‘extremely high-quality product of filtration, obtained through ultrafilters’ accepted by the General Court cannot a fortiori be derived directly and without further consideration from the mark. The General Court itself arrived at this divergent meaning only after going through a number of stages in its reasoning: first, the relevant public would have to interpret ‘ultra.air ultrafilter’ in the sense of ‘air of extremely high quality obtained through ultrafilters’. Secondly, it would have to conclude that this purported meaning is not descriptive for the liquid-filtering machinery and apparatus actually being assessed, but that it is descriptive for air-filtering machinery and apparatus. Thirdly, it would then have to derive ‘extremely high-quality product of filtration, obtained through ultrafilters’ from the specifically established meaning of ‘ultra.air ultrafilter’. The purported meaning thereby obtained includes a number of words that are not present in the mark (‘product of filtration’; ‘high-quality’), while simply omitting words that are (‘air’). |
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(b)

Secondly, Article 7(1)(c) of Regulation No 207/2009 has been infringed with respect to goods constituting ‘liquid-filtering machinery and apparatus’ in that the divergent descriptive meaning of ‘ultra.air ultrafilter’ in the sense of ‘extremely high-quality product of filtration, obtained through ultrafilters’ accepted by the General Court cannot a fortiori be derived directly and without further consideration from the mark. The General Court itself arrived at this divergent meaning only after going through a number of stages in its reasoning: first, the relevant public would have to interpret ‘ultra.air ultrafilter’ in the sense of ‘air of extremely high quality obtained through ultrafilters’. Secondly, it would have to conclude that this purported meaning is not descriptive for the liquid-filtering machinery and apparatus actually being assessed, but that it is descriptive for air-filtering machinery and apparatus. Thirdly, it would then have to derive ‘extremely high-quality product of filtration, obtained through ultrafilters’ from the specifically established meaning of ‘ultra.air ultrafilter’. The purported meaning thereby obtained includes a number of words that are not present in the mark (‘product of filtration’; ‘high-quality’), while simply omitting words that are (‘air’).

a fortiori

Second plea in law: Infringement of Article 7(1)(b) of Regulation No 207/2009

Article 7(1)(b) of Regulation No 207/2009 has been infringed on the same grounds as Article 7(1)(c) of Regulation No 207/2009.

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

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