Source: EURLEX
Language: en
Format: md

**Judgment of the General Court (Sixth Chamber) of 9 March 2011 – Longevity Health Products v OHIM – Performing Science (5 HTP)**

**(Case T-190/09)**

Community trade mark – Invalidity proceedings – Community word mark 5 HTP – Absolute ground for refusal – Signs or indications which have become customary – Article 7(1)(d) of Regulation (EC) No 207/2009 – Distinctive character acquired by use – Article 52(2) of Regulation No 207/2009

1.                     *Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed
exclusively of signs or indications which have become customary in everyday language or commerce – Commonplace character –
Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(d)) (see paras 26-27)*

2.                     *Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article
7(1)(d) of Regulation No 207/2009 – Exception – Acquisition of distinctive character through use (Council Regulation No 207/2009,
Arts 7(1)(d) and 52(2)) (see paras 31, 37-40, 52)*

**Re:**

|  |  |
| --- | --- |
|  | ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 21 April 2009 (Case R 595/2008-4) relating to invalidity proceedings between Performing Science LLC and Longevity Health Products Inc. |

**Information relating to the case**

|  |  |
| --- | --- |
| Registered Community trade mark of which cancellation sought: | Word mark 5 HTP for goods and services in Classes 5, 16 and 35 – Community trade mark No 2846483 |
| Proprietor of the Community trade mark: | Longevity Health Products, Inc. |
| Party requesting the declaration of invalidity of the Community trade mark: | Performing Science LLC |
| Decision of the Cancellation Division: | Application for declaration of invalidity of the trade mark concerned partially granted |
| Decision of the Board of Appeal: | Appeal dismissed |

**Operative part**

The Court:

|  |  |  |
| --- | --- | --- |
| 1. |  | Dismisses the action; |

|  |  |  |
| --- | --- | --- |
| 2. |  | Orders Longevity Health Products Inc. to pay the costs. |

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