Order — ECLI:EU:C:2009:42
Date: 2009-01-30
Language of the case: English
Court formation: Fifth 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

Appeal brought on 1 April 2008 by Dorel Juvenile Group, Inc. against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 January 2008 in Case T-88/06: Dorel Juvenile Group, Inc. v Office for Harmonization in the Internal Market (Trade Mark and Designs) (OHIM) (Case C-131/08 P) Language of the case: English Parties Appellant: Dorel Juvenile Group, Inc. (represented by: Dr. G. Simon, Rechtsanwältin) Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) Form of order sought The appellant claims that the Court should: annul judgment of the Court of First Instance (Fifth Chamber) of 24 January 2008, Case T-88/06 ; annul the Decision of the Second Board of Appeal of 11 January 2006, Case R 616/2004-2 and order the defendant to pay the costs. Pleas in law and main arguments The appellant submits that the CFI's assessment of the conditions for registration of a trademark is too restrictive. The appellant argues that the CFI assessed the character of the term "SAFETY 1st" by means of a separate analysis of the element "1st" and based its judgment on the presumption that as the element "1st" was devoid of a distinctive character it cannot acquire such character when combined with the trademark element "SAFETY". According to the appellant the CFI should have assessed the distinctive character of the mark on the overall perception of the wording "SAFETY 1st" by the average consumer. The splitting by the Court of the trademark "SAFETY 1st" into its component parts does not reflect the view and approach adopted by consumers. The contested judgment relies on a criterion according to which the expression safety first is used to designate the goods covered by the mark applied for "as information relating to a quality or characteristic of the goods". The appellant submits that that criterion is relevant in the context of art. 7(1)(c) of regulation nº 40/94 but it is not the yardstick against which art. 7(1)(b) thereof should be judged. Therefore, the Court based its view that the sign in question fell within the scope of art. 7(1)(b) on the fat that it did not satisfy the criteria for protection governed by art. 7(1)(c). Finally the appellant submits that the CFI also ignored the fact that art. 12(b) of regulation nº 40/941 constitutes a corrective to the interpretation of article 7(1)(b). ____________ 1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 11