CELEX: 62008TN0118
Language: en
Date: 2008-03-13 00:00:00
Title: Case T-118/08: Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)

26.4.2008   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 107/42
            
         Action brought on 13 March 2008 — Actega Terra v OHIM (TERRAEFFEKT matt & gloss)
   (Case T-118/08)
   (2008/C 107/71)
   Language in which the application was lodged: German
   Parties
   
      Applicant: Actega Terra GmbH (Lehrte, Germany) (represented by A. Andorfer-Erhard, lawyer)
   
      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought
   
               —
            
            
               Annul Decision R 1467/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 January 2008;
            
         
               —
            
            
               Declare that Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude registration of the Community trade mark applied for No 5 454 517, TERRAEFFEKT matt & gloss, for goods in Class 2 ‘Lacquer, in particular for the graphic industry; all goods previously mentioned not for use in the building industry’;
            
         
               —
            
            
               In the alternative, limit the description of the goods in Community trade mark application No 5 454 517 as follows:
            
         ‘Class 2: Lacquer, in particular for the graphic industry, with the characteristic that when applied to an undercoat it produces either a matt or a glossy surface depending on the nature of the undercoat; all goods previously mentioned not for use in the building industry’
   and to declare that to that extent Article 7(1)(b) and (c) of Regulation (EC) No 40/94 do not preclude the possibility of registering the trade mark applied for;
   
               —
            
            
               Order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.
            
         Pleas in law and main arguments
   
      Community trade mark concerned: the word mark ‘TERRAEFFEKT matt & gloss’ for goods in Class 2 (Application No 5 454 517).
   
      Decision of the Examiner: Reject the application.
   
      Decision of the Board of Appeal: Dismiss the appeal.
   
      Pleas in law: Infringement of Article 7 (1)(b) of Regulation (EC) No 40/94 (1) because the trade mark applied for displays the required distinctive character and is not exclusively descriptive.
   
      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).