EN Official Journal of the European Union C 138/29

Appeal brought on 27 January 2015 by Simba Toys GmbH & Co. KG against the judgment of the General Court (Sixth Chamber) delivered on 25 November 2014 in Case T-450/09: Simba Toys GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-30/15 P)

(2015/C 138/41)

Language of the case: English

Parties

Appellant: Simba Toys GmbH & Co. KG (represented by: O. Ruhl, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Seven Towns Limited

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union of 25 November 2014 in case T-450/09 Simba Toys GmbH & Co. KG v. OHIM- Seven Towns Limited;

— annul the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trademarks and Designs) of 1 September 2009 (case 1526/2008-2);

— order the Office for Harmonization in the Internal Market (Trademarks and Designs) and Seven Towns Limited to pay the costs of the appeal proceedings before the Court and of the application proceedings at first instance before the General Court.

Pleas in law and main arguments

The appellant raises six grounds of appeal: The first ground of appeal alleges infringement of Article 7(1)(e)(ii) of Regulation No 40/94 (1). The second ground of appeal alleges infringement of Article 7(1)(e)(i) of Regulation No 40/94. The third ground of appeal alleges infringement of Article 7(1)(e)(iii) of Regulation No 40/94. The fourth ground of appeal alleges infringement of Article 7(1)(b) of Regulation No 40/94. The fifth ground of appeal alleges infringement of Article 7(1)(c) of Regulation No 40/94. The sixth ground of appeal alleges infringement of Article 76(1) of Regulation No 207/2009 (2).

The first ground of appeal is divided into eleven parts: incorrect ‘fathom precisely’ requirement; incorrect disregard of products already on the market; findings on disclosure of the trademark representation based on distortion of facts and evidence; too narrow interpretation of the criterion ‘technical function’; disregard of lack of essential arbitrary features; incorrect public interest considerations; incorrect legal assessment of relevance of lack of alternative shapes; finding of alternative shapes based on distortion of facts and evidence; incorrect legal standards in relation to causation and result of technical function; irrelevance of possibility of cubes without visible lines; incorrect conclusion from alleged non-technicality of one subcategory of goods to non-technicality of all other goods for which a trademark is registered.

The second ground of appeal consists of one part: incorrect disregard that the essential elements are functional.

The third ground of appeal consists of one part: incorrect disregard that the essential elements give substantial value to the product.

The fourth ground of appeal is divided into eleven parts: incorrect legal assessment of burden of proof incorrect analysis of the individual features of the contested trademark; incorrect disregard of technicality of individual features; incorrect reliance only on the norms of the sector concerned; incorrect ‘spontaneously’ criterion; incorrect conclusion from alleged distinctiveness of one subcategory of goods to distinctiveness to all other goods for which a trademark is registered; incorrect application of ‘most likely to be taken’ criterion; denial of magic cube as the most likely shape only through distortion of facts and evidence; incorrect assessment of distinctiveness only from the perspective of the customer; incorrect refusal to consider specific products actually marketed; incorrect legal standards for the relevance of products already on the market.

The fifth ground of appeal is divided into eighth parts: incorrect ‘unambiguously’ requirement; incorrect ‘spontaneously’ requirement; incorrect interpretation of the ‘direct and specific link’ criterion; incorrect analysis of descriptiveness only with regard to general wording of goods; incorrect definition of relevant public; incorrect assessment of knowledge of public; incorrect disregard of future developments; incorrect assessment of public interest by incorrect reference to alternative shapes.

The sixth ground of appeal consists of one part: incorrect finding of facts without taking evidence.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1

(2) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1