Judgment — ECLI:EU:T:2008:332
Date: 2008-09-10
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Three-dimensional marks
Procedure: Action for annulment - unfounded

Action brought on 1 August 2006 - Gerson v OHIM (Paint filter) (Case T-201/06) Language of the case: English Parties Applicant: Louis M. Gerson Co., Inc (Middleboro, USA) (represented by: M. Edenborough, Barrister) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Form of order sought - Annulment of the decision of 15 May 2006 (Case R 1387/2005-2) of the Board of Appeal in its entirety; - order the Office to pay the applicant the costs incurred in connection with prosecuting this appeal before the Court of First Instance. Pleas in law and main arguments Community trade mark concerned: 3-dimensional mark consisting of 'the colour light yellow in the shade claimed, applied to the mesh in the tip of a paint filter' for goods and services in classes 16 and 21- application No 3 969 367. Decision of the examiner: Refusal of the application. Decision of the Board of Appeal: Dismissal of the appeal. Pleas in law: Infringement of Article 7(1)(b) of Council Regulation 40/94. The applicant claims that the Board of Appeal made several factual errors of assessment and adopted at least one error made by the Examination Division. Moreover, in the appraisal of the available evidence the Board of Appeal allegedly failed to do the appropriate balancing reaching, thus, a wrong conclusion when considering Article 7(1)(b) of the above mentioned regulation. The applicant finally contends that the application is distinctive of one trade source and therefore does not offend Article 7(1)(b) of the regulation. In fact, the applicant claims the use of colour would be noticed by the relevant public as being associated with only the single trade source. ____________