Case T-127/02

Concept – Anlagen u. Geräte nach ‘GMP’ für Produktion u. Labor GmbH

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Figurative mark containing the word element ‘ECA’ – Absolute ground for refusal – Emblem of an international intergovernmental organisation – Article 7(1)(h) of Regulation (EC) No 40/94 – Article 6 ter of the Paris Convention)

Judgment of the Court of First Instance (Fourth Chamber), 21 April 2004

Summary of the Judgment

1. Procedure – Application initiating proceedings – Formal requirements – Summary of the pleas in law on which the application is based – Pleas in law not set out in the application – Reference to the body of annexes – Inadmissibility

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

2. Community trade mark – Definition and acquisition of Community trade mark – Absolute grounds for refusal – Marks to be refused pursuant to the Paris Convention – Protection of State emblems and emblems of international intergovernmental organisations – Scope of the same

(Council Regulation No 40/94, Art. 7(1)(h))

3. Community trade mark – Definition and acquisition of Community trade mark – Absolute grounds for refusal – Marks to be refused pursuant to Article 6 ter of the Paris Convention – European emblem – Figurative mark consisting of a circle of stars containing the word element ‘ECA’ – Imitation from a heraldic point of view, likely to give the impression that there is a connection between the mark and the European institutions

(Council Regulation No 40/94, Art. 7(1)(h))

1. Article 44(1) of the Rules of Procedure of the Court of First Instance provides that the application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to rule on the action, even without any other supporting information. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provision, must appear in the application.

Since the applicant merely makes a general reference in its application to the arguments set out in earlier proceedings, without identifying either the specific points in its application which it wishes to supplement by that reference or the annexes in which those arguments might be set out, the Court is not required to find in the annexes the arguments to which the applicant might be referring or to examine them, since those arguments are inadmissible.

(see paras 17-21)

2. State emblems and emblems of international intergovernmental organisations are protected, under Article 6 ter (1)(a)(b) of the Paris Convention for the Protection of Industrial Property, to which Article 7(1)(h) of Regulation No 40/94 on the Community trade mark refers, not only against the registration and use of marks which are identical to them or which incorporate them but also against the inclusion in such marks of any imitation of those emblems from a heraldic point of view.

Accordingly, the fact that a mark also contains, unlike the protected emblem, a word element does not, in itself, preclude application of that article. The important question is whether the mark applied for contains an element which may be regarded as the emblem or an imitation thereof from a heraldic point of view. That element need not necessarily be identical to the emblem in question. The fact that the emblem in question is stylised or that only part of the emblem is used does not mean that there is no imitation from a heraldic point of view.

Moreover, when making a comparison ‘from a heraldic point of view’, regard must be had to the heraldic description of the emblem and not to its geometric description, which is by nature much more detailed.

(see paras 40-41, 44)

3. Under Article 7(1)(h) of Regulation No 40/94 on the Community trade mark, ‘trade marks which have not been authorised by the competent authorities and are to be refused pursuant to Article 6 ter of the Paris Convention’ are not to be registered. That provision aims to preclude the registration and use of trade marks which are identical to State emblems or which are to a certain degree similar to them. Such registration or use would adversely affect the right of the State to control the use of the symbols of its sovereignty and might, moreover, mislead the public as to the origin of the goods for which such marks are used. By virtue of Article 6 ter (1)(b) of the Paris Convention, that protection also covers the armorial bearings, flags, other emblems, abbreviations and names of international intergovernmental organisations.

As regards, in that respect, a figurative sign consisting of a circle of stars of the same shape and size having five points one of which points upwards, on a square background around the word element ‘ECA’, without any mention of colours, in respect of which registration was sought for certain goods and services within Classes 9, 41 and 42 of the Nice Agreement, including record data carriers and arranging and conducting of ‘colloquiums, seminars, symposiums, congresses and conferences; providing of tuition, instruction, training; consultancy on training and further training’, there is an imitation from a heraldic point of view of the European emblem within the meaning of the provision cited.

So far as concerns possible application of the second sentence of Article 6 ter (1)(c) of the Paris Convention, the kind of goods and services in respect of which registration was sought does not rule out that the relevant public might believe that there is a connection between the applicant and the Council of Europe, the European Union or the European Community. Accordingly, registration of the mark applied for is likely to give the impression, on the part of the public, that there is a connection between the applicant and the mark applied for and the institutions in question. The presence of the abbreviation ‘ECA’ in the centre of the sign of the mark applied for reinforces that impression.

(see paras 39, 51, 68-69)