CELEX: C2004/217/32
Language: en
Date: 2004-08-28 00:00:00
Title: Case C-286/04 P: Appeal brought on 5 July 2004 by Eurocermex SA against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-399/02 between Eurocermex SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

28.8.2004   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 217/17
            
         Appeal brought on 5 July 2004 by Eurocermex SA against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-399/02 between Eurocermex SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case C-286/04 P)
   (2004/C 217/32)
   An appeal against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-399/02 between Eurocermex SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 5 July 2004 (fax 29.6.2004) by Eurocermex SA, represented by A. Bertrand, Avocat.
   The applicant claims that the Court should:
   
               —
            
            
               reverse the decision of the Court of First Instance of 29 April 2004;
            
         
               —
            
            
               annul the contested decision.
            
         Pleas in law and main arguments:
   The Court of First Instance carried out a separate examination of the various elements of which the mark applied for is composed and, confirming the decision of the Board of Appeal, held that those elements lacked distinctiveness so that the consumer would not be able to identify the origin of the goods. In so doing, the Court of First Instance sought to separate the various elements in order to consider them individually and thus deny the mark applied for any distinctive character. That represents a serious error in analysis and in law, as it is the overall perception of the sign as applied for that must be considered and not the various elements of the sign, taken individually.
   In any event, the mark acquired its distinctive character in consequence of the widespread use which has been made of it as a rallying sign for a product and/or an undertaking.