Judgment of the General Court (Fifth Chamber) of 21 November 2012 — Getty Images v OHIM (PHOTOS.COM)

(Case T-338/11)

‛Community trade mark — Application for the Community word mark PHOTOS.COM — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — No distinctiveness acquired through use — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16, 17)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark PHOTOS.COM (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18-34)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 41-44)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Word mark PHOTOS.COM (Council Regulation No 207/2009, Art. 7(3)) (see paras 48-64)

5. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see para. 69)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 6 April 2011 (Case R 1831/2010-2) concerning an application for registration of the word mark PHOTOS.COM as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;

2. Orders Getty Images (US), Inc. to pay the costs.

Judgment of the General Court (Fifth Chamber) of 21 November 2012 — Getty Images v OHIM (PHOTOS.COM)

(Case T-338/11)

‛Community trade mark — Application for the Community word mark PHOTOS.COM — Absolute grounds for refusal — Lack of distinctive character — Descriptive character — No distinctiveness acquired through use — Article 7(1)(b) and (c) and Article 7(3) of Regulation (EC) No 207/2009’

1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 16, 17)

2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark PHOTOS.COM (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 18-34)

3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Criteria for assessment (Council Regulation No 207/2009, Art. 7(3)) (see paras 41-44)

4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Exception — Acquisition of distinctiveness through use — Word mark PHOTOS.COM (Council Regulation No 207/2009, Art. 7(3)) (see paras 48-64)

5. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see para. 69)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 6 April 2011 (Case R 1831/2010-2) concerning an application for registration of the word mark PHOTOS.COM as a Community trade mark.

Operative part

The Court:

1. Dismisses the action;