# C_2010063EN.01003602.xml

| 13.3.2010 | EN | Official Journal of the European Union | C 63/36 |
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13.3.2010

EN

Official Journal of the European Union

C 63/36

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Appeal brought on 6 January 2010 by Giampietro Torresan against the judgment of the Court of First Instance (Second Chamber) delivered on 19 November 2009 in Case T-234/06 Torresan v Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

(Case C-5/10 P)

2010/C 63/57

Language of the case: Italian

Parties

Parties

Appellant: Giampietro Torresan (represented by: G. Recher and R. Munarini, avvocati)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Klosterbrauerei Weissenohe GmbH & Co. KG

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment in Case T-234/06, Reg. No 414968, notified by fax on 19 November 2009; |
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set aside the judgment in Case T-234/06, Reg. No 414968, notified by fax on 19 November 2009;

| — | uphold in their entirety the forms of order sought by Mr Torresan before the Court of First Instance (now ‘the General Court’) in Case T-234/06; |
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uphold in their entirety the forms of order sought by Mr Torresan before the Court of First Instance (now ‘the General Court’) in Case T-234/06;

| — | in any event, order OHIM to pay the costs of the proceedings in their entirety, including the costs incurred before OHIM and in the proceedings before the General Court. |
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in any event, order OHIM to pay the costs of the proceedings in their entirety, including the costs incurred before OHIM and in the proceedings before the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

| (i) | Infringement and/or misapplication of the Community legislation concerning agriculture and foodstuffs; |
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(i)

Infringement and/or misapplication of the Community legislation concerning agriculture and foodstuffs;

| (ii) | Infringement and/or misapplication of the legislation on consumer protection, with regard to the notion of the average consumer; |
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(ii)

Infringement and/or misapplication of the legislation on consumer protection, with regard to the notion of the average consumer;

| (iii) | Infringement of the language rules for proceedings; |
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(iii)

Infringement of the language rules for proceedings;

| (iv) | Distortion of the facts or the evidence, all factors designed to confirm, as the sole and ultimate inference, the absolutely distinctive and non-descriptive character of the mark Cannabis, with a view to establishing the infringement or misapplication of Article 7(1)(c) of the Trade Mark Regulation (1) and the contradictory nature of the reasoning followed by the General Court in support of the finding that the mark Cannabis is descriptive. In consequence, it will be appropriate to declare that the judgment in Case T-234/06 — the judgment under appeal — is set aside in its entirety. |
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(iv)

Distortion of the facts or the evidence, all factors designed to confirm, as the sole and ultimate inference, the absolutely distinctive and non-descriptive character of the mark Cannabis, with a view to establishing the infringement or misapplication of Article 7(1)(c) of the Trade Mark Regulation (1) and the contradictory nature of the reasoning followed by the General Court in support of the finding that the mark Cannabis is descriptive. In consequence, it will be appropriate to declare that the judgment in Case T-234/06 — the judgment under appeal — is set aside in its entirety.

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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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