Case C-131/08 P: Appeal brought on 1 April 2008 by Dorel Juvenile Group, Inc. against the judgment of the Court of First Instance (Fifth Chamber) delivered on 24 January 2008 in Case T-88/06, Dorel Juvenile Group, Inc. v Office for Harmonization in the Internal Market (Trade Mark and Designs) (OHIM)
Date: 2008-04-01
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), early childhood, trade-mark law, vehicle parts

C 158/10

EN

Official Journal of the European Union

21.6.2008

Commission and a Member State on scientific grounds is to be
resolved, but not in cases which,
like the present case, are
concerned only with incomplete notification of sites generally.

The procedural objections put forward by the defendant are
therefore not well founded.

According to the appellant the CFI should have assessed the
distinctive character of the mark on the overall perception of
the wording ‘SAFETY 1st’ by the average consumer. The splitting
by the Court of the trademark ‘SAFETY 1st’ into its component
parts does not reflect the view and approach adopted by consu-
mers.

Appeal brought on 1 April 2008 by Dorel Juvenile Group,
Inc. against the judgment of the Court of First Instance
(Fifth Chamber) delivered on 24 January 2008 in Case
for
T-88/06, Dorel
Harmonization in the Internal Market (Trade Mark and
Designs) (OHIM)

Juvenile Group,

Inc. v Office

The contested judgment relies on a criterion according to which
the expression safety first is used to designate the goods covered
by the mark applied for ‘as information relating to a quality or
characteristic of
the goods’. The appellant submits that that
criterion is relevant in the context of Article 7(1)(c) of Regu-
lation No 40/94 but
the yardstick against which
Article 7(1)(b) thereof should be judged. Therefore, the Court
based its view that the sign in question fell within the scope of
Article 7(1)(b) on the fat that it did not satisfy the criteria for
protection governed by Article 7(1)(c).

is not

it

(Case C-131/08 P)

(2008/C 158/14)

Language of the case: English

Finally the appellant submits that the CFI also ignored the fact
that Article 12(b) of Regulation No 40/94 (1) constitutes a
corrective to the interpretation of Article 7(1)(b).

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

Community trade mark (OJ L 11).

Parties

Appellant: Dorel
Simon, Rechtsanwältin)

Juvenile Group,

Inc.

(represented by: Dr. G.

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

Form of order sought

Reference for a preliminary ruling from the Hoge Raad der
lodged on 2 April 2008 — Intercontainer
Nederlanden,
Interfrigo (ICF) SC v Balkenende Oosthuizen BV and MIC
Operations BV

(Case C-133/08)

(2008/C 158/15)

The appellant claims that the Court should:

Language of the case: Dutch

— annul

judgment of

the Court of First

Instance (Fifth

Chamber) of 24 January 2008, Case T-88/06;

— annul

the Decision of

the Second Board of Appeal of

11 January 2006, Case R 616/2004-2 and

Referring court

— order the defendant to pay the costs.

Hoge Raad der Nederlanden

Pleas in law and main arguments

The appellant submits that the CFI's assessment of the condi-
tions for registration of a trademark is too restrictive. The appel-
lant argues that the CFI assessed the character of
the term
‘SAFETY 1st’ by means of a separate analysis of the element ‘1st’
and based its judgment on the presumption that as the element
‘1st’ was devoid of a distinctive character it cannot acquire such
character when combined with the trademark element ‘SAFETY’.

Parties to the main proceedings

Appellant: Intercontainer Interfrigo (ICF) SC

Respondents: Balkenende Oosthuizen BV and MIC Operations BV