Case T-229/07: Action brought on 29 January 2007 — Vitro Corporativo v OHIM — VALLON (V)
Date: 2007-08-25
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), building materials, classification, scientific apparatus, trade-mark law

25.8.2007

EN

Official Journal of the European Union

C 199/43

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘LIGHT &
SPACE’ for goods in class 2 — application No 5 147 756

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 as the Board of Appeal regarded the trade
mark in question as if it were an advertising slogan, indication
to purchase without considering
of quality or
whether the trade mark could also be an indication of origin.

incitement

Furthermore, the Board of Appeal erred in its examination of
the trade mark as a whole and in its examination of its compo-
nent parts and committed an error of law by requiring that the
trade mark combines words that are unusual or out of the
ordinary in relation to the goods in question in order to acquire
distinctive character.

Finally the Board of Appeal did not assess distinctiveness in rela-
tion to the specific goods applied for.

Proprietor of the mark or sign cited in the opposition proceedings:
Vallon GmbH.

Mark or sign cited in opposition: Community figurative mark
No 51.037 (the letter V against a white background), for goods
in class 9 (Apparatus for checking and supervising).

Decision of the Opposition Division: Opposition upheld and appli-
cation for a Community mark for goods in class 9 rejected.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Incorrect application of Article 8(1)(b) of Regulation
(EC) No 40/94 on the Community trade mark.

Action brought on 2 July 2007 — Laboratorios Del
Dr. Esteve v OHIM — Ester C (ESTER-E)

(Case T-230/07)

(2007/C 199/82)

Language in which the application was lodged: English

Action brought on 29 January 2007 — Vitro Corporativo v
OHIM — VALLON (V)

Parties

(Case T-229/07)

(2007/C 199/81)

Language in which the application was lodged: Spanish

Parties

Applicant: Laboratorios Del Dr. Esteve, SA (Barcelona, Spain)
(represented by: K. Manhaeve, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Ester C
Company (Prescott, United States)

Applicant: Vitro Corporativo, S.A. de C.V.
J. Botella Reyna, lawyer)

(represented by:

Form of order sought

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

— Annul

the decision of
R 737/2006-2 of 17 April 2007;

the Second Board of Appeal

Other party to the proceedings before the Board of Appeal of OHIM:
Vallon GmbH.

— order

the defendant and — if applicable — Ester C

Company to pay all the costs (jointly and severally).

Form of order sought

— order that the subject matter of the action be registered as a
Community trade mark to distinguish goods in class 9.

Pleas in law and main arguments

Pleas in law and main arguments

Applicant for the Community trade mark: The Ester C Company

Community trade mark concerned: The Community word mark
‘ESTER-E’ for goods and services in Class 3 and 5 — application
No 3163946

Applicant for a Community trade mark: Vitro Corporativo, S.A. de
C.V.

Proprietor of the mark or sign cited in the opposition proceedings:
Laboratorios Del Dr. Esteve SA

Community trade mark concerned: Figurative mark consisting of a
letter ‘V’ (application No 2.669.513) for goods and services in
classes 1, 7, 8, 9, 11, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35,
39, 40, 41, 42 and 43.

Mark or sign cited: The Community figurative mark ‘ESTEVE’ for
goods in Class 1, 5 and 42 and the national figurative mark
‘ESTEVE’ and ‘ESTEVE-LABORATORIO DEL DR. ESTEVE S.A.’
for goods in Class 5