CELEX: 62009TJ0190
Language: en
Date: 2011-03-09 00:00:00
Title: Judgment of the General Court (Sixth Chamber) of 9 March 2011. # Longevity Health Products, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Community trade mark - Invalidity proceedings - Community word mark 5 HTP - Absolute ground of 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. # Case T-190/09.

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.