Appeal brought on 9 July 2015 by Steinbeck GmbH against the judgment of the General Court (Fifth Chamber) delivered on 30 April 2015 in Joined Cases T-707/13 and T-709/13 Steinbeck GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-346/15 P)

Language of the case: German

Parties

Appellant: Steinbeck GmbH (represented by: M. Heinrich and M. Fischer, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Alfred Sternjakob GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

Set aside the judgment of the General Court delivered on 30 April 2015 in Joined Cases T-707/13 and T-709/13;

Order the defendant to pay the costs.

Grounds of appeal and main arguments

The appellant considers that the judgment under appeal is in breach of Article 7(1)(b) of Regulation No 207/2009 ¹ :

The single ground stated by the General Court for holding that the mark ‘BE HAPPY’ lacked distinctive character was that it could be perceived as an advertising slogan. That is directly contradictory to the case-law of the Court of Justice of the European Union, according to which that alone is not sufficient to exclude distinctive character.

The General Court failed further to set out any specific connection between the mark ‘BE HAPPY’ and the goods for which that mark was to be registered which did not require some interpretation by the relevant public. On the contrary an arbitrary link between the goods and the sign was made, which, even if it were correct, required an effort of interpretation from the relevant public.

The General Court thereby erred in law in applying the criteria for the assessment of the distinctive character of the mark ‘BE HAPPY’.

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¹     Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).