EN Official Journal of the European Union C 30/25

Appeal brought on 23 November 2010 by Hans-Peter Wilfer against the judgment of the General Court (Fourth Chamber) delivered on 8 September 2010 in Case T-458/08 Wilfer v Office for Harmonization in the Internal Market (Trade marks and Designs)

(Case C-546/10 P)

()

2011/C 30/42

Language of the case: German

Parties

Appellant: Hans-Peter Wilfer (represented by: W. Prinz, Rechtsanwalt)

Other party: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Forms of order sought

The appellant claims that the Court should:

— set aside in full the judgment of the General Court of 8 September 2010 in Case T-458/08;

— order OHIM to pay the costs.

Pleas in law and main arguments

The present appeal is brought against the judgment of the General Court, by which that court dismissed the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 July 2008 rejecting its application for registration of the figurative mark representing the head of a guitar using the colours silver, grey and brown.

The appellant raises four pleas in support of the appeal.

The Court did not take documents into consideration, which had first been submitted with the application. The appellant considers that they should have been taken into consideration as they were merely additional to the existing application.

The appellant alleges that the Court breached Article 7(1)(b) of Regulation (EC) No 40/94 in failing to take account of the fact that, in the case of three-dimensional product form marks, a distinction must be made between, on the one hand, mass products and, on the other hand, special products. Special products are characterised by the fact that the relevant public generally considers that they contain parts which serve the purpose of indicating origin. Accordingly, the demonstration of distinctiveness is not subject to special requirements. In this context, with regard to such product parts, a minimum degree of distinctive character is sufficient. Furthermore, the issue of distinctiveness was not addressed taking account of the knowledge of the relevant public (professional or hobby musicians), who are aware of that it is common practice that string musical instruments, including violins, such as a Stradivari, are labelled by a particular form of headstock. The Court also did not take account of the fact that a minimum degree of distinctive character is sufficient in the case of a figurative mark, which only reproduces a part of the goods, which is commonly used to label the goods, such as the headstock of a guitar.

The Court breached the principle of examination of the facts by OHIM of its own motion under Article 74(1) of Regulation No 40/94, in misinterpreting the general rule/exception relationship, in relation to the question as to the extent to which the headstock can indicate the origin of a guitar.

Finally, the Court also breached the principle of equal treatment by not taking account of the fact that other Community and national trade marks also exist, which likewise reproduce only the headstock of a guitar.