Source: EURLEX
Language: en
Format: md

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| 4.4.2009 | EN | Official Journal of the European Union | C 82/19 |

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Appeal brought on 2 February 2009 by Lego Juris A/S against the judgment of the Court of First Instance (Eighth Chamber) delivered on 12 November 2008 in Case T-270/06 Lego Juris A/S v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Other party before the Board of Appeal, intervener before the Court of First Instance Mega Brands, Inc.

(Case C-48/09 P)

(2009/C 82/34)

Language of the case: English

Parties

Appellant: Lego Juris A/S (represented by: V. von Bomhard, Rechtsanwältin, T. Dolde, A. Renck, Rechtsanwälte)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Megabrands, Inc.

Form of order sought

The appellant claim that the Court should:

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| — | set aside the judgment of the Court of First Instance, because it violates Article 71(1)(e)(ii)CTMR[(1)](#ntr1-C_2009082EN.01001901-E0001) |

Pleas in law and main arguments

The appellant submits that the contested judgment infringes art. 7(1)(e)(ii) of the Community Trade Mark Regulation. The appellant maintains that the Court of First Instance:

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| a) | interpreted art. 7(1)(e)(ii) CTMR in such a way as to effectively preclude any shape which performs a function from trade mark protection, independently of whether the criteria of art. 7(1)(e)(ii) CTMR as defined by the Court in the Philips/Remington decision[(2)](#ntr2-C_2009082EN.01001901-E0002) are fulfilled or not. |

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| b) | applied the wrong criteria in the identification of the essential characteristics of a three-dimensional trade mark: and |

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| c) | applied an incorrect functionality test in that it i) did not limit its assessment to the essential characteristics of the trade mark at issues and, ii) did not define the appropriate criteria for assessing whether a characteristic of a shape is functional and, in particular, refused to take into account any potential a lternative designs. |

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