Case C-398/08 P: Judgment of the Court (First Chamber) of 21 January 2010 — Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Regulation (EC) No 40/94 — Articles 7(1)(b) and 63 — Word mark Vorsprung durch Technik — Marks consisting of advertising slogans — Distinctive character — Application for a trade mark in respect of a large number of goods and services — Relevant public — Global assessment and reasoning — New documents)
Date: 2010-01-21
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, advertising, appeal, motor vehicle industry, trade-mark law








C_2010063EN.01001001.xml










13.3.2010   


EN


Official Journal of the European Union


C 63/10





Judgment of the Court (First Chamber) of 21 January 2010 — Audi AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
(Case C-398/08 P) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Articles 7(1)(b) and 63 - Word mark Vorsprung durch Technik - Marks consisting of advertising slogans - Distinctive character - Application for a trade mark in respect of a large number of goods and services - Relevant public - Global assessment and reasoning - New documents)
2010/C 63/15
Language of the case: German

Parties


Appellant: Audi AG (represented by: S.O. Gillert and F. Schiwek, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Re:

Appeal against the judgment of 9 July 2008 in Case T-70/06 Audi v OHIM by which the Court of First Instance (Fourth Chamber) dismissed the action for annulment of the decision of the Second Board of Appeal of OHIM of 16 December 2005 dismissing in part the appeal against the examiner’s decision refusing registration of the word mark ‘VORSPRUNG DURCH TECHNIK’ for goods and services in Classes 9, 12, 14, 25, 28, 37 to 40 and 42 — Marks consisting of advertising slogans — Distinctive character — Application of specific assessment criteria — Insufficient reasons stated as regards how the relevant public was determined — Consideration of pleas submitted for the first time in the procedure before the Court of First Instance

Operative part of the judgment

The Court:






1.


Sets aside the judgment of 9 July 2008 in Case T-70/06 Audi v OHIM (Vorsprung durch Technik), in so far as the Court of First Instance of the European Communities held that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) had not infringed Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as amended by Council Regulation (EC) No 3288/94 of 22 December 1994, in adopting its decision of 16 December 2005 (Case R 237/2005-2);










2.


Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 December 2005 (Case R 237/2005-2) in so far as, on the basis of Article 7(1)(b) of Regulation No 40/94 as amended by Regulation No 3288/94, that decision refused in part the application for registration of the mark Vorsprung durch Technik;










3.


Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the costs of the proceedings at first instance and the appeal proceedings.






(1)  OJ C 301, 22.11.2008.