Source: EURLEX
Language: en
Format: md

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| 20.5.2006 | EN | Official Journal of the European Union | C 121/7 |

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Appeal brought on 20 March 2006 by Henkel KGaA against the judgment of the Court of First Instance (Second Chamber) delivered on 17 January 2006 in Case T-398/04 Henkel KGaA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-144/06 P)

(2006/C 121/12)

Language of the case: German

Parties

Appellant: Henkel KGaA (represented by: Dr C. Osterrieth, Rechtsanwalt)

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

Form of order sought

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| — | Set aside the judgment of the Court of First Instance of the European Communities of 17 January 2006 in Case T-398/04[(1)](#ntr1-C_2006121EN.01000701-E0001), notified on 23 January 2006 and annul the decision of the Second Board of Appeal of OHIM of 4 August 2004 (Case R771/1999-2) concerning the Community trade mark application No 000941971; |

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| — | order OHIM to pay the costs. |

Pleas in law and main arguments

In its appeal, the appellant contends that there has been an infringement of substantive law as a result of the assessment, erroneous in law and in fact, of the requirement that the mark applied for be distinctive.

In the judgment under appeal, the Court of First Instance wrongly stated that the sign claimed — a three-coloured figurative mark, which is an accurate depiction of a dishwasher and washing machine tablet — is not sufficiently distinctive. This view of the Court neither satisfies the previous criteria of the case-law of the Court of Justice with regard to the requirements which are to be met for a figurative mark to be distinctive, nor did it take account of the actual circumstances on the relevant market.

There is nothing to support the Court's ‘general experience’ that the products in question are acquired without care and that the public will not be significantly influenced by the depiction of the product. Contrary to this assumption by the Court, the target public are completely accustomed to drawing immediate conclusions as to the manufacturer based only on the depiction of the specific, individually shaped product. In the market in question, it has become settled practice that the individual form of the dishwasher and washing machine tablets has a direct purpose as an indication of origin: each manufacturer uses different colourings to distinguish his product from those of other manufacturers.

In testing distinctive character, it must simply be verified whether the sign claimed is suitable to distinguish the goods for which the application is made as coming from a particular company and thereby distinguishing these goods from those of other companies. Individuality and originality are not necessary and may not be used as the basis of a test. Since the appellant has chosen several elements, namely the rectangular shape, the layer structure as well as the insertion of an oval centre combined with the free choice of three colours, it has provided enough individual elements which show that the figurative mark is sufficiently distinctive.

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