Action brought on 6 August 2009 - Earle Beauty v OHIM (NATURALLY ACTIVE)

(Case T-307/09)

Language of the case: English

Parties

Applicant(s): Liz Earle Beauty Co. Ltd (Ryde, United Kingdom) (represented by M. Cover, Solicitor)

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

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 May 2009 in case R 27/2009-2 and declare that the Community trade mark concerned can proceed to publication and registration; and

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Community trade mark concerned: The word mark "NATURALLY ACTIVE" for goods and services in classes 3, 5, 16, 18, 35 and 44

Decision of the examiner: Refused the application for a Community trade mark

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation 40/94 (which became Article 7(1)(b) of Council Regulation 207/2009) as the Board of Appeal erred in its finding that the phrase "Naturally Active" was normal in the English language and was therefore a laudatory term that could be easily understood by the general public, thus having no inherent distinctiveness; infringement of Article 7(3) of Council Regulation 40/94 (which became Article 7(3) of Council Regulation 207/2009) as the Board of Appeal: (i) was incorrect to find that the trade mark concerned had not become distinctive through use; and (ii) appears to have not given due weight to the objective evidence provided by the applicant and therefore did not have good and adequate reasons for their finding in relation to this legal provision; infringement of Article 7(2) of Council Regulation 40/94 (which became Article 7(2) of Council Regulation 207/2009) as the Board of Appeal was wrong to apply the test for this legal provision, in relation to their findings for Article 7(3) of Council Regulation 40/94, to all Member States of the EU, instead of applying the relevant test only to Member States which are predominantly English speaking.

____________