Action brought on7 January 2010 - Diagnostiko kai Therapeftiko Kentro Athinon "Ygia AE" v OHIM

(Case T-7/10)

Language of the case: Greek

Parties

Applicant: Diagnostiko kai Therapeftiko Kentro Athinon "Ygia AE" (Athens, Greece) (represented by: K. Alexiou and S. Foteas, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The applicant claims that the Court should:

uphold the application;

annul the decision of the Second Board of Appeal of OHIM in Case No R190/2009-2;

register the word sign "υγεία" (hygeia) as a Community trademark indicating the link between the applicant company and the services it provides;

order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: the word sign "υγεία" for services in Class 44, medical services - application for registration No 712900

Decision of the examiner: rejection of the application for registration

Decision of the Board of Appeal: confirmation of the decision of the examiner and rejection of the application for registration

Pleas in law:

The application seeks annulment of the decision of the Second Board of Appeal of OHIM in Case No R 190/2009-2.

On the basis of the first plea, the applicant maintains that the contested decision wrongly ascribed purely descriptive character to the sign, despite the fact that it has a distinctive function in abstracto.

On the basis of the second plea, the applicant maintains that the contested decision wrongly rejected the distinctive function of the sign in consequence of the use reserved to it. According to the applicant, even if the descriptive character in abstracto of the word sign is accepted, the acquisition of distinctive function can be founded on use and constitutes a ground for setting aside the refusal to register.

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