Action brought on 23 February 2007 - BYK-Chemie v OHIM - (Substance for Success)

(Case T-58/07)

Language of the case: German

Parties

Applicant: BYK-Chemie (Wesel, Germany) (represented by: J. Kroher and A. Hettenkofer, lawyers)

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

Form of order sought

Annul the decision of the Fourth Board of Appeal of the defendant of 9 January 2007 in Case R0816/2006-04;

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark 'Substance for success' for goods and services in Classes 1, 40-42 (Application No 3 660 552).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 7(1)(b) and (c) of Council Regulation No 40/94 ¹ as the registered trade mark is neither devoid of the necessary distinctive character nor is to be reserved for use in trade.

____________

¹ - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1)