Case C-273/05 P: Appeal brought on 5 July 2005 by Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) against the judgment delivered on 14 April 2005 by the Third Chamber of the Court of First Instance of the European Communities in Case T-260/03 between Celltech R&D Ltd and Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-10-01
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, pharmaceutical product, trade-mark law

C 243/6

EN

Official Journal of the European Union

1.10.2005

Appeal brought on 5 July 2005 by Office for Harmoniza-
tion in the Internal Market (Trade Marks and Designs)
(OHIM) against the judgment delivered on 14 April 2005
by the Third Chamber of the Court of First Instance of the
European Communities in Case T-260/03 between Celltech
R&D Ltd and Office for Harmonization in the Internal
Market (Trade Marks and Designs) (OHIM)

Office claims that the decision of the Court of First Instance
violated Article 7(1)(b) and (c) CTMR and is vitiated by the
failure to give proper reasons in support of the Court's findings.
The ground of appeal consists of the five following limbs:

(Case C-273/05 P)

(2005/C 243/08)

(Language of the case: English)

— Although the Court of First Instance recognised ‘that at
least one meaning of the word mark CELLTECH is “cell
technology”’, it incorrectly required the Board of Appeal to
give ‘an explanation of the meaning in scientific terms of
in order to explain ‘in what way those
cell technology’
terms give any information about the intended purpose and
nature of the goods and services referred to in the applica-
tion for registration, in particular about the way in which
those goods and services would be applied to cell tech-
nology or how they would result from it’;

An appeal against the judgment delivered on 14 April 2005 by
the Third Chamber of the Court of First Instance of the Euro-
pean Communities in case T-260/03 (1) between Celltech R&D
Ltd and Office for Harmonization in the Internal Market (Trade
Marks and Designs) (OHIM) was brought before the Court of
Justice of the European Communities on 5 July 2005 by Office
for Harmonization in the Internal Market (Trade Marks and
Designs)
(OHIM), represented by Arnaud Folliard-Monguiral,
acting as Agent.

The Appellant claims that the Court should:

1. annul the Judgment of the Court of First Instance of 14

April 2005 in Case T-260/03,

2. dismiss the appeal filed by the Applicant before the Court
of First Instance against the decision of the Second Board of
Appeal of OHIM of 19 May 2003 (Case R 659/2002 2)
concerning an application for registration as a Community
trade mark of the word mark CELLTECH,

3. order the Applicant before the Court of First Instance to pay
the costs in relation to the proceedings before the Court of
First Instance and before the Court of Justice.

In the event that the Court of Justice does not uphold the
Appellant's main claim under (2), the Appellant would respect-
fully request the Court of Justice:

1. to annul the Judgment of the Court of First Instance of 14

April 2005 in Case T-260/03,

2. to remand the case to the Court of First Instance.

Pleas in law and main arguments:

In its action before the Court of Justice the Office requests that
the Judgment of the Court of First Instance be set aside. The

— The Court of First Instance wrongly disregarded the prin-
ciple following which a mere combination of elements,
each of which is descriptive of characteristics of the goods
or services in question, without any unusual variations as to
syntax or meaning, remains descriptive of those characteris-
tics for the purposes of Article 7(1)(c) CTMR;

— The Court's statement that a finding of descriptiveness or of
lack of distinctiveness requires a description of the ‘intended
purpose’ of the goods and services in question is erroneous
as a matter of law. Although the Court recognised that ‘cell
technology’ is an ‘area of use’ for the goods and services in
question, it wrongly held that the description of such an
‘area of use’ would be insufficient to establish that the sign
CELLTECH is descriptive and therefore devoid of distinctive-
ness;

— The Court incorrectly considered that the description of a
process for the production or the supplying of the goods
and services in question does not fall within the ambit of
Article 7(1)(c) CTMR;

— The Court also failed to give reasons in support of the latter

finding.

(1) OJ C 155, 25.06.05, p. 16