Judgment of the General Court (Fourth Chamber) of 8 September 2010 – Wilfer v OHIM (Representation of the head of a guitar)
(Case T-458/08)
Community trade mark – Application for a Community figurative mark representing the head of a guitar in silver, grey and brown – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 7(1)(b) of Regulation (EC) No 207/2009) – Examination of the facts of its own motion – Article 74(1) of Regulation No 40/94 (now Article 76(1) of Regulation No 207/2009) – Duty to state reasons – First sentence of Article 73 of Regulation No 40/94 (now first sentence of Article 75 of Regulation No 207/2009) – Equal treatment
1.                     Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 52, 60)
2.                     Community trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope (Council Regulation No 40/94, Art. 74(1)) (see paras 71-72)
3.                     Community trade mark – Decisions of the Office – Legality – Examination by the Community judicature – Criteria (Council Regulation No 40/94) (see paras 93-95)
Re:
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 25 July 2008 (Case R 78/2007-4), concerning the registration as a Community trade mark of the figurative sign representing the head of a guitar in the colours silver, grey and brown.
Information relating to the case
Applicant for the Community trade mark:
Hans-Peter Wilfer
Community trade mark sought:
Figurative mark representing the head of a guitar in the colours silver, grey and brown, for goods in Classes 9 and 15 – Application No 2639821
Decision of the examiner:
Registration refused
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Hans-Peter Wilfer to pay the costs.