Judgment of the Court of First Instance (Fifth Chamber) of 9 July 2009 – Biotronik v OHIM (BioMonitor)

(Case T-257/08)

Community trade mark – Application for Community word mark BioMonitor – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009)

Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which may serve to designate the characteristics of goods (Council Regulation No 40/94, Art. 7(1)(c)) (see paras 22, 30)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 24 April 2008 (Case R 466/2007‑4) concerning an application for registration of the word sign BioMonitor as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:	Biotronik GmbH & Co. KG
Community trade mark sought:	Word mark ‘BioMonitor’ for goods and services in Classes 9, 10 and 38, the list of goods being subsequently limited to goods in Class 10 – Application No 4556023
Decision of the Examiner:	Application rejected
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Biotronik GmbH & Co. KG to pay the costs.