Judgment of the General Court (Ninth Chamber) of 5 February 2015 —
nMetric v OHIM (SMARTER SCHEDULING)
(Case T‑499/13)
Community trade mark — International registration designating the European Community — Word mark SMARTER SCHEDULING — Absolute ground for refusal — Lack of distinctiveness — Article 7(1)(b) of Regulation (EC) No 207/2009
1. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character — Criteria (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 15, 16)
2. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Overlap between the scope of the grounds for refusal set out in subparagraphs (b) and (c) of Article 7(1) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 7(1)(b) and (c)) (see paras 21-23)
3. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark SMARTER SCHEDULING (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 33, 34, 37, 45, 46)
4. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark composed of several elements — Account taken of the overall perception of the combination by the relevant public (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 40)
5. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 41, 42)
6. Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 43, 44)
7. Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — EU rules only taken into account — Earlier registration of the mark in certain Member States or third countries — Decisions not binding EU bodies (Council Regulation No 207/2009) (see paras 48, 49)
8. Community trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 50)
Re:
| ACTION brought against the decision of the Second Board of Appeal of OHIM of 17 June 2013 (Case R 887/2012-2), concerning the international registration, designating the European Community, of the word mark SMARTER SCHEDULING. |
Operative part
The Court:
2. | | Orders nMetric LLC to pay the costs. |