Judgment of the Court of First Instance (Second Chamber) of 16 September 2008 – ratiopharm v OHIM (BioGeneriX)

(Case T-48/07)

Community trade mark – Application for Community word mark BioGeneriX – Absolute ground for refusal – Partially descriptive character – Article 7(1)(b) and (c) of Regulation (EC) No 40/94

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 – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b) and (c)) (see paras 21, 25-27, 37)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 20 December 2006 (Case R 1048/2004-4) concerning an application for registration of the word mark BioGeneriX as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:	ratiopharm GmbH
Community trade mark sought:	Word mark BioGenerix for goods in Classes 1 and 5 – Application No 1603124
Decision of the Opposition Division:	Registration partially refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 20 December 2006 (Case R 1048/2004-4), in so far as chemical substances for preserving foodstuffs, falling within Class 1, are concerned;

2. Dismisses the action as to the remainder;

3. Orders ratiopharm GmbH to bear its own costs and to pay half of OHIM’s costs. OHIM is ordered to bear the other half of its costs.