Case C-469/01 P: Appeal brought on 6 December 2001 by Procter & Gamble Company against the judgment delivered on 19 September 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-118/00 between Procter & Gamble Company and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2002-03-16
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, General Court (EU), action for annulment (EU), household electrical appliance, polishing and scouring preparations, trade mark

C 68/2

EN

Official Journal of the European Communities

16.3.2002

the European Communities in case T-117/00 between Procter
& Gamble Company and Office for Harmonisation in the
(OHIM) was
Internal Market
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.

(Trade Marks and Designs)

— in failing to assess whether the specific pattern (speckles
and/or layers) of the colours was already part of the usual
get up(s) of the tablets on the market at the relevant date
and, if not, whether the difference is perceptible, rendering
it apt to confer distinctive character on the Marks.

(1) OJ C 192, 8.7.2000, p. 21.

The Appellant claims that the Court should:

— annul the judgment

— order the OHIM to pay the costs both at first instance

and on appeal.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance erred in
the following respects:

— in deeming it unnecessary to decide whether the distinc-
tive character of the Mark should be assessed by reference
to the date on which the application for registration is
filed or the date of actual registration;

— in holding that the level of attention given by the average
consumer to the shape and colours of washing machine
and dishwasher tablets is not high;

Appeal brought on 6 December 2001 by Procter &
Gamble Company against the judgment delivered on
19 September 2001 by the Second Chamber of the Court
of First Instance of the European Communities in case
T-118/00 (1) between Procter & Gamble Company and
Office for Harmonisation in the Internal Market (Trade
Marks and Designs) (OHIM)

(Case C-469/01 P)

(2002/C 68/04)

An appeal against the judgment delivered on 19 September
2001 by the Second Chamber of the Court of First Instance of
the European Communities in case T-118/00 between Procter
& Gamble Company and Office for Harmonisation in the
Internal Market
(OHIM) was
brought before the Court of Justice of the European Communi-
ties on 6 December 2001 by Procter & Gamble Company,
established in Cincinnati, Ohio (United States of America),
represented by C.J.J.C. van Nispen and G. Kuipers, lawyers.

(Trade Marks and Designs)

— in deeming it appropriate to ascertain whether the Marks
applied for will enable the members of the public targeted
to distinguish the products from those having a different
trade origin when they come to select a product for
purchase;

The Appellant claims that the Court should:

— annul the judgment

— in holding that the slightly rounded corners of the tablet
are not likely to be perceived by the average consumer as
a distinctive feature of the shape claimed, capable of
distinguishing it
from other washing machine or
dishwasher tablets and in failing to assess whether such
slightly rounded corners were already part of the usual
get up(s) of the tablets on the market at the relevant date
and, if not, whether the difference is perceptible, rendering
it apt to confer distinctive character on the Marks;

— in failing to assess whether the colours as applied to
Marks were already part of the usual get up(s) of the
tablets on the market at the relevant date and, if not,
whether the difference is perceptible, rendering it apt to
confer distinctive character on the Marks;

— order the OHIM to pay the costs both at first instance

and on appeal.

Pleas in law and main arguments

See case C-468/01 P.

(1) OJ C 192, 8.7.2000, p. 21.