Case C-497/07 P: Appeal brought on 16 November 2007 by Philip Morris Products SA against the judgment of the Court of First Instance (Second Chamber) delivered on 12 September 2007 in Case T-140/06 Philip Morris Products v OHIM
Date: 2007-11-16
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment (EU), trade-mark law

26.1.2008

EN

Official Journal of the European Union

C 22/27

Question referred

Are Articles 10(1) and 12(1) of
the First Council Directive
89/104/EEC of 21 December 1988 to approximate the laws of
the Member States relating to trade marks (Trade Mark Direc-
tive) (1) to be interpreted as meaning that a trade mark is being
put to genuine use if it is used for goods (here: alcohol-free
drinks) which the proprietor of the trade mark gives, free of
charge, to purchasers of his other goods (here: textiles) after
conclusion of the purchase contract?

(1) OJ 1989 L 40, p. l.

perception of the mark. That error arises, on the one hand,
from the fact that the Court envisaged use of the mark only
through its incorporation into a packet of cigarettes, although
the shape of packaging for a given product can be perceived by
the public in a multitude of other forms, such as graphic or
three-dimensional representations of
the mark in advertising
material. The error of assessment arises, on the other hand,
from the fact
Instance reduced the
the Court of First
concept of a mark to its part which is perceptible by a prospec-
tive purchaser at the moment immediately prior to his purchase,
whilst the public concerned by a mark is composed of all those
who may be faced with it in the course of normal use of the
mark, which occurs both during the advertising of the product
before it has been purchased and during use or consumption of
the product after it has been purchased.

that

The appellant claims, thirdly and lastly, that the grounds of the
judgment under appeal are contradictory.

Appeal brought on 16 November 2007 by Philip Morris
Products SA against the judgment of the Court of First
Instance (Second Chamber) delivered on 12 September
2007 in Case T-140/06 Philip Morris Products v OHIM

(1) OJ 1994 L 11, p. 1.

(Case C-497/07 P)

(2008/C 22/52)

Language of the case: French

Parties

Appellant: Philip Morris Products SA (represented by: T. van
Innis and C. S. Moreau, lawyers)

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

Form of order sought

— Set aside the judgment under appeal;

— Order the Office to pay the costs.

Pleas in law and main arguments

the appellant claims that

By its appeal,
the Court of First
Instance infringed Articles 4 and 7(1)(b) of Council Regulation
(EC) No 40/94 of 20 December 1993 on the Community trade
mark (1). In this respect, it complains, first, that the Court of
First Instance based its assessment on a bias against the category
of marks in which the mark applied for falls. In finding that
consumers are not in the habit of making assumptions about
the origin of goods on the basis of their shape or of the shape
of their packaging, the Court of First Instance made a factual
finding which has no scientific foundation whatsoever and
misconstrues the human perception of signs in general, and of
shapes in particular.

Second, the appellant complains that the Court of First Instance
carried out an incorrect legal analysis of the relevant public's

Appeal brought on 16 November 2007 by Aceites del
Sur-Coosur S.A. formerly Aceites del Sur S.A against the
judgment delivered by the Court of First Instance (First
Chamber) on 12 September 2007 in Case T-363/04 Koipe
Corporacion S.L. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-498/07 P)

(2008/C 22/53)

Language of the case: Spanish

Parties

Appellant: Aceites del Sur-Coosur S.A., formerly Aceites del Sur
S.A. (represented by: J.-M Otero Lastres, lawyer)

Other parties to the proceedings: Koipe Corporacion S.L and Office
for Harmonisation in the Internal Market (Trade Marks and
Designs)

Form of order sought

— declare that the appeal against the judgment of the Court of
First Instance (First Chamber) of 12 September 2007 in Case
T-363/04 for infringement of Community law was lodged
in good time and in due form;

— uphold the appeal and, accordingly, set aside the judgment
of the Court of First Instance in its entirety in accordance
with Article 61 of the Statute of the Court of Justice and
Article 113 of the Rules of Procedure;