Judgment — ECLI:EU:T:2010:234
Date: 2010-06-15
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Germany

Action brought on 13 March 2008 - Actega Terra v OHIM (TERRAEFFEKT matt & gloss) (Case T-118/08) Language in which the application was lodged: German Parties Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by A. Andorfer-Erhard, lawyer) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) 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; 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: '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. 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). Decision of the Examiner: Reject the application. Decision of the Board of Appeal: Dismiss the 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. ____________ 1 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).