Order — ECLI:EU:C:2008:83
Date: 2008-02-13
Language of the case: English
Court formation: Sixth 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: Portugal

Appeal brought on 23 April 2007 by Indorata-Serviços e Gestão, Ldª against the judgment delivered on 15 February 2007 in Case T-204/04 Indorata-Serviços e Gestão, Lda v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case C-212/07 P) Language of the case: German Parties Appellant: Indorata-Serviços e Gestão, Ldª (represented by: T. Wallentin, Rechtsanwalt) Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) Form of order sought set aside the judgment of the Court of First Instance of 15 February 2007 in Case T-204/04;1 order the respondent to pay the costs. Pleas in law and main arguments The appellant argues four grounds in support of its appeal against the above judgment of the Court of First Instance. By its first ground of appeal, the appellant relies on infringement of Article 7(1)(b) of Regulation No 40/94. Contrary to the observations of the Court, the term HAIRTRANSFER is capable of registration since its fanciful nature gives it distinctive character and is therefore capable of distinguishing the goods and services of the appellant from those of other undertakings. By its second ground of appeal, the appellant relies on infringement of Article 7(1)(c) of Regulation No 40/94. By its finding that the sign HAIRTRANSFER in respect of the goods applied for in Class 8 has a sufficiently direct and genuine link to the goods concerned and that the sign HAIRTRANSFER indicates the intended purpose of the goods in Class 22 to the relevant public, and therefore in its entirety also shows a sufficiently direct and genuine link to the goods concerned in Class 22, the Court of First Instance misinterpreted and misapplied the provision at issue. In addition, HAIRTRANSFER cannot be descriptive in respect of the rejected goods per se, since an 'exclusively descriptive' function of goods is not appropriate for services (!) By its third ground of appeal, the appellant relies on breach of the principle of equal treatment. Signs which are definitely similar to the set of words at issue have been the subject of decisions of OHIM on the registration of Community trade marks. The appellant stated in the proceedings before the Court of First Instance that the sign in the present case has distinctive character also on account of the settled practice of OHIM, the Austrian Patent Office and the Patent Offices of numerous Member States. Finally, by its fourth ground of appeal, the appellant relies on breach of general principles of EC law. The judgement of the Court of First Instance under appeal infringes the requirement of objectivity and the principle of coherence in decision-making, inasmuch as within one and the same application for a Community trade mark registration a distinction is made which cannot be objectively applied. It is quite evident that 'hair thickening' in Class 44 and rejected by the Office is included in hair lengthening. Registration of the sign HAIRTRANSFER in respect of 'hair lengthening' and rejection in respect of 'hair thickening' is therefore objectively unjustified. ____________ 1 - OJ C 82 of 14.4.2007, p. 32.