Judgment of the Court of First Instance of 10 November 2004 in Case T-396/02: August Storck KG v Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) (Community trade mark — Three-dimensional mark — Shape of a sweet — Absolute grounds for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Distinctive character acquired through use — Article 7(3) of Regulation (EC) No 40/94)
Date: 2005-01-22
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), confectionery product, trade-mark law

C 19/22

EN

Official Journal of the European Union

22.1.2005

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 10 November 2004

in Case T-396/02: August Storck KG v Office for Harmoni-
sation in the Internal Market (Trade marks and Designs)
(OHIM) (1)

(Community trade mark — Three-dimensional mark —
Shape of a sweet — Absolute grounds for refusal — Article
7(1)(b) of Regulation (EC) No 40/94 — Distinctive character
acquired through use — Article 7(3) of Regulation (EC) No
40/94)

A. Heise and I. Rohr, lawyers, with an address for service in
Luxembourg, against Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), (Agents: B. Müller
and G. Schneider) – action for annulment of the decision of the
Second Board of Appeal of OHIM of 18 October 2002 (Case R
0256/2001-2) refusing registration of a trade mark repre-
senting a twisted wrapper (shape of a sweet wrapper) – the
Court of First
Instance (Fourth Chamber), composed of H.
Judges; B. Pastor,
Legal, President, V. Tiili and M. Vilaras,
Deputy Registrar, for the Registrar, has given a judgment on 10
November 2004, in which it:

(2005/C 19/47)

1. Dismisses the action;

(Language of the case: German)

(OHIM)

and Designs)

In Case T-396/02: August Storck KG, established in Berlin,
represented by H. Wrage-Molkenthin, T. Reher, A. Heise and
I. Rohr,
lawyers, with an address for service in Luxembourg
against Office for Harmonisation in the Internal Market (Trade
and
marks
G. Schneider) – action for annulment of the decision of the
Fourth Board of Appeal of OHIM of 14 October 2002 (Case
R 187/2001-4), refusing registration of a three-dimensional
mark comprised of the shape of a light-brown sweet – the
Instance (Fourth Chamber), composed of H.
Court of First
Legal, President, V. Tiili and M. Vilaras,
Judges; B. Pastor,
Deputy Registrar, for the Registrar, has given a judgment on 10
November 2004, in which it:

(Agents: B. Müller

1. Dismisses the action;

2. Orders the applicant to pay the costs.

(1) OJ C 55 of 8.3.2003.

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 10 November 2004

in Case T-402/02: August Storck KG v Office for Harmoni-
sation in the Internal Market (Trade Marks and Designs)
(OHIM) (1)

(Community trade mark — Figurative mark representing the
form of a twisted wrapper (shape of a sweet wrapper) —
Subject-matter of the application — Absolute ground for
refusal — Article 7(1)(b) of Regulation (EC) No 40/94 —
Distinctive character acquired though use — Article 7(3) of
Regulation (EC) No 40/94 — Right to be heard — Article
73(1) of Regulation (EC) No 40/94 — Examination of the
facts by OHIM of its own motion — Article 74(1) of Regu-
lation (EC) No 40/94)

(2005/C 19/48)

(Language of the case: German)

In Case T-402/02: August Storck KG, established in Berlin
(Germany), represented by H. Wrage-Molkenthin, T. Reher,

2. Orders the applicant to pay the costs.

(1) OJ C 55 of 8.3.2003.

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 9 November 2004

in Case T-116/03 Oresto Montalto v Council of the Euro-
pean Union (1)

(Officials — Recruitment — Temporary agent — Vacancy
notice — Recruitment procedure)

(2005/C 19/49)

(Language of the case: French)

In Case T-116/03, Oresto Montalto, official of the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs) (OHIM), residing in Alicante (Spain), represented by G.
Vandersanden, lawyer, against Council of the European Union
(Agents: B. Hoff-Nielsen and F. Anton) – application, first, for
annulment of the Council decision of 23 May 2002 appointing
an additional chairperson of a Board of Appeal and President
of the Appeals Department of OHIM (OJ 2002 C 130, p. 2)
and, secondly, for damages – the Court of First Instance (Fifth
Chamber), composed of P. Lindh, President, R. García-Valde-
casas and J.D. Cooke, Judges; I. Natsinas, Administrator, for the
Registrar, has given a judgment on 9 November 2004,
in
which it: