Case T-115/08: Action brought on 10 March 2008 — Gourmet Burger Kitchen v OHIM (GOURMET BURGER KITCHEN)
Date: 2008-03-10
Institutions: Court of First Instance
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), catering industry, trade-mark law

C 107/42

EN

Official Journal of the European Union

26.4.2008

Action brought on 10 March 2008 — Gourmet Burger
Kitchen v OHIM (GOURMET BURGER KITCHEN)

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

(Case T-115/08)

(2008/C 107/70)

Language in which the application was lodged: English

Form of order sought

Parties

Applicant: Gourmet Burger Kitchen Ltd (London, United
Kingdom) (represented by C. Sawdy, Solicitor)

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

Form of order sought

— Annul

the Decision of

the Second Board of Appeal of

5 December 2007 in case R 1215/2007-2; and

— order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: A word mark consisting of the
words GOURMET BURGER KITCHEN for various goods and
services in classes 29, 30, 31, 32, 33 and 43 — application
No 4 615 341

Decision of
services in class 43

the examiner: Partial refusal of the application for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c) of Council
Regulation No 40/94 as the trade mark has acquired distinctive-
ness through use in the United Kingdom and Ireland.

— Annul Decision R 1467/2007-1 of

the First Board of
the Office for Harmonisation in the Internal

Appeal of
Market (Trade Marks and Designs) of 7 January 2008;

— Declare that Article 7(1)(b) and (c) of Regulation (EC)
No 40/94 do not preclude registration of the Community
trade mark applied for No 5 454 517, TERRAEFFEKT matt
& gloss, for goods in Class 2 ‘Lacquer, in particular for the
graphic industry; all goods previously mentioned not for use
in the building industry’;

— In the alternative, limit the description of the goods in Com-
munity trade mark application No 5 454 517 as follows:

‘Class 2: Lacquer, in particular for the graphic industry, with the
characteristic that when applied to an undercoat it produces
either a matt or a glossy surface depending on the nature of the
undercoat; all goods previously mentioned not for use in the
building industry’

and to declare that to that extent Article 7(1)(b) and (c) of Regu-
lation (EC) No 40/94 do not preclude the possibility of regis-
tering the trade mark applied for;

— Order the Office for Harmonisation in the Internal Market

(Trade Marks and Designs) to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘TERRAEFFEKT
matt & gloss’ for goods in Class 2 (Application No 5 454 517).

Decision of the Examiner: Reject the application.

Action brought on 13 March 2008 — Actega Terra v
OHIM (TERRAEFFEKT matt & gloss)

Decision of the Board of Appeal: Dismiss the appeal.

(Case T-118/08)

(2008/C 107/71)

Language in which the application was lodged: German

Parties

Applicant: Actega Terra GmbH (Lehrte, Germany) (represented
by A. Andorfer-Erhard, lawyer)

Pleas in law: Infringement of Article 7 (1)(b) of Regulation (EC)
No 40/94 (1) because the trade mark applied for displays the
required distinctive character and is not exclusively descriptive.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).