Case C-144/06 P: Appeal brought on  20 March 2006  by Henkel KGaA against the judgment of the Court of First Instance (Second Chamber) delivered on  17 January 2006  in Case T-398/04 Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2006-05-20
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, polishing and scouring preparations, trade-mark law

20.5.2006

EN

Official Journal of the European Union

C 121/7

the judgment of

Appeal brought on 20 March 2006 by Henkel KGaA
against
Instance
(Second Chamber) delivered on 17 January 2006 in Case
T-398/04 Henkel KGaA v Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM)

the Court of First

(Case C-144/06 P)

(2006/C 121/12)

Language of the case: German

Parties

immediate conclusions as to the manufacturer based only on
the depiction of the specific,
individually shaped product. In
the market in question, it has become settled practice that the
individual form of the dishwasher and washing machine tablets
has a direct purpose as an indication of origin: each manufac-
turer uses different colourings to distinguish his product from
those of other manufacturers.

In testing distinctive character,
it must simply be verified
whether the sign claimed is suitable to distinguish the goods
for which the application is made as coming from a particular
company and thereby distinguishing these goods from those of
other companies. Individuality and originality are not necessary
and may not be used as the basis of a test. Since the appellant
has chosen several elements, namely the rectangular shape, the
layer structure as well as the insertion of an oval centre
combined with the free choice of three colours, it has provided
enough individual elements which show that the figurative
mark is sufficiently distinctive.

Appellant: Henkel KGaA (represented by: Dr C. Osterrieth,
Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(1) OJ 2006 C 74, p.18

Form of order sought

— Set aside the judgment of the Court of First Instance of the
European Communities of 17 January 2006 in Case T-398/
04 (1), notified on 23 January 2006 and annul the decision
of the Second Board of Appeal of OHIM of 4 August 2004
(Case R771/1999-2) concerning the Community trade
mark application No 000941971;

— order OHIM to pay the costs.

Pleas in law and main arguments

In its appeal, the appellant contends that there has been an
infringement of substantive law as a result of the assessment,
erroneous in law and in fact, of the requirement that the mark
applied for be distinctive.

the Court of First

In the judgment under appeal,
Instance
wrongly stated that the sign claimed — a three-coloured figura-
tive mark, which is an accurate depiction of a dishwasher and
washing machine tablet — is not sufficiently distinctive. This
view of the Court neither satisfies the previous criteria of the
case-law of the Court of Justice with regard to the requirements
which are to be met for a figurative mark to be distinctive, nor
did it take account of the actual circumstances on the relevant
market.

There is nothing to support the Court's ‘general experience’
that the products in question are acquired without care and
that the public will not be significantly influenced by the depic-
tion of the product. Contrary to this assumption by the Court,
the target public are completely accustomed to drawing

Appeal brought on 17 March 2006 by Arizona Chemical
BV, Eastman Belgium BVBA, Cray Valley Iberica, SA
against the judgment of the Court of First Instance (Third
Chamber) delivered on 14 December 2005 in Case T-369/
03: Arizona Chemical B.V, Eastman Belgium BVBA, Resi-
nall Europe BVBA, Cray Valley Iberica S.A v Commission
of the European Communities, supported by Finland

(Case C-150/06 P)

(2006/C 121/13)

Language of the case: English

Parties

Appellants: Arizona Chemical BV, Eastman Belgium BVBA, Cray
Valley Iberica, SA (represented by: K. Van Maldegem and C.
Mereu, avocats)

Other parties to the proceedings: Commission of the European
Communities, Finland, Resinall Europe BVBA