Order — ECLI:EU:C:2009:584
Date: 2009-09-24
Language of the case: French
Court formation: Eighth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Appeals
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: France

Appeal brought on 24 February 2009 by Compagnie des bateaux mouches SA against the judgment delivered on 10 December 2008 in Case T-365/06 Bateaux mouches v OHIM (Case C-78/09P) Language of the case: French Parties Appellant: Compagnie des bateaux mouches SA (represented by: G. Barbaut, lawyer) Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Jean-Noël Castanet Form of order sought Declare the appeal of Compagnie des bateaux mouches admissible; set aside the judgment of the Court of First Instance of the European Communities of 10 December 2008 (Case T-365/06); Order the Court of First Instance of the European Communities to pay all the costs. Pleas in law and main arguments The appellant raises two pleas in support of its appeal. By its first plea, the appellant alleges breach by the Court of First Instance of Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. 1 In that regard, it complains first that the Court of First Instance disregarded the intrinsic distinctive character which the mark had from the outset. Secondly, that distinctive character was even maintained and reinforced over time by the use made thereof by the appellant. The mark 'BATEAUX MOUCHES' is displayed on the boats used by the appellant - and by it alone - for tourist trips on the River Seine, the use of the terms 'bateaux mouches' on Internet search engines leads directly to the appellant's website and the appellant has implemented an active policy of defending its mark against all abusive use. By its second plea, the appellant complains that the Court of First Instance wrongly interpreted the criteria laid down by case-law enabling establishment of the acquisition by use of the distinctive character of the mark 'BATEAUX MOUCHES'. The factors capable of demonstrating the mark's distinctive character, such as the market share held by the mark, the intensity, geographical spread and duration of the use of that mark, the size of the investment made by the company to promote it, the proportion in the relevant fields of those who identify the product or service as coming from a particular undertaking because of the mark, should have been examined, as a whole and not merely in part, by the Court of First Instance. ____________ 1 - OJ 1994 L 11, p. 1.