Action brought on 13 March 2008 - Actega Terra v OHIM (TERRAEFFEKT matt & gloss)
(Case T-118/08)
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).