Judgment of the General Court (Second Chamber) of 29 September 2010 – Interflon v OHIM – Illinois Tool Works (FOODLUBE)
(Case T-200/08)
Community trade mark – Invalidity proceedings – Community trade mark FOODLUBE – Absolute grounds for refusal – Descriptiveness – Distinctive character – Article 7(1)(b) and (c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation (EC) No 207/2009)
Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article 7(1)(b) and (c) of Regulation No 40/94 (Council Regulation No 40/94, Arts 7(1)(b), and (c) and 51(1)(a)) (see paras 31, 47-48, 61-66)
Re:
ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 March 2008 (Case R 638/2007‑2) concerning invalidity proceedings between Interflon BV and Illinois Tool Works, Inc.
Information relating to the case
Registered Community trade mark of which cancellation sought:
Word mark FOODLUBE for goods in Classes 1 and 4 – Registration No 1647734
Proprietor of the Community trade mark:
Illinois Tools Works, Inc.
Party requesting the declaration of invalidity of the Community trade mark:
Interflon BV
Trade mark of the party seeking cancellation:
The applicant argues that the contested Community trade mark was registered in infringement of Article 7(1)(b) and (c)
Decision of the Cancellation Division:
Application for cancellation dismissed
Decision of the Board of Appeal:
Appeal dismissed
Operative part
The Court:
1.
Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 March 2008 (Case R 638/2007‑2) in so far as it dismisses the appeal with regard to chemicals used in industry in Class 1, and industrial oils and greases and lubricants in Class 4;
2.
Dismisses the action as to the remainder;
3.
Orders each party to bear its own costs.