# C_2008107EN.01004202.xml

| 26.4.2008 | EN | Official Journal of the European Union | C 107/42 |
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26.4.2008

EN

Official Journal of the European Union

C 107/42

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Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)

(Case T-118/08)

(2008/C 107/71)

Language in which the application was lodged: German

Parties

Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by A. Andorfer-Erhard, lawyer)

Applicant:

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

Defendant:

Form of order sought

| — | Annul Decision R 1467/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2008; |
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Annul Decision R 1467/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2008;

| — | Declare that Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude registration of the Community trade mark applied for No 5 454 517, TERRAEFFEKT matt & gloss, for goods in Class 2 ‘Lacquer, in particular for the graphic industry; all goods previously mentioned not for use in the building industry’; |
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Declare that Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude registration of the Community trade mark applied for No 5 454 517, TERRAEFFEKT matt & gloss, for goods in Class 2 ‘Lacquer, in particular for the graphic industry; all goods previously mentioned not for use in the building industry’;

| — | In the alternative, limit the description of the goods in Community trade mark application No 5 454 517 as follows: |
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In the alternative, limit the description of the goods in Community trade mark application No 5 454 517 as follows:

‘Class 2: Lacquer, in particular for the graphic industry, with the characteristic that when applied to an undercoat it produces either a matt or a glossy surface depending on the nature of the undercoat; all goods previously mentioned not for use in the building industry’

and to declare that to that extent Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude the possibility of registering the trade mark applied for;

| — | Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs. |
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Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘TERRAEFFEKT matt & gloss’ for goods in Class 2 (Application No 5 454 517).

Community trade mark concerned:

Decision of the Examiner: Reject the application.

Decision of the Examiner:

Decision of the Board of Appeal: Dismiss the appeal.

Decision of the Board of Appeal:

Pleas in law: Infringement of Article 7 (1)(b) of Regulation (EC) No 40/94 (1) because the trade mark applied for displays the required distinctive character and is not exclusively descriptive.

Pleas in law:

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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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