Judgment of the General Court (Second Chamber) of 29 September 2010 – Interflon v OHIM – Illinois Tool Works (FOODLUBE)

(Case T-200/08)

Community trade mark – Invalidity proceedings – Community trade mark FOODLUBE – Absolute grounds for refusal – Descriptiveness – Distinctive character – Article 7(1)(b) and (c) and Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 7(1)(b) and (c) and Article 52(1)(a) of Regulation (EC) No 207/2009)

Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article 7(1)(b) and (c) of Regulation No 40/94 (Council Regulation No 40/94, Arts 7(1)(b), and (c) and 51(1)(a)) (see paras 31, 47-48, 61-66)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 March 2008 (Case R 638/2007‑2) concerning invalidity proceedings between Interflon BV and Illinois Tool Works, Inc.

Information relating to the case

Registered Community trade mark of which cancellation sought:	Word mark FOODLUBE for goods in Classes 1 and 4 – Registration No 1647734
Proprietor of the Community trade mark:	Illinois Tools Works, Inc.
Party requesting the declaration of invalidity of the Community trade mark:	Interflon BV
Trade mark of the party seeking cancellation:	The applicant argues that the contested Community trade mark was registered in infringement of Article 7(1)(b) and (c)
Decision of the Cancellation Division:	Application for cancellation dismissed
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 March 2008 (Case R 638/2007‑2) in so far as it dismisses the appeal with regard to chemicals used in industry in Class 1, and industrial oils and greases and lubricants in Class 4;

2. Dismisses the action as to the remainder;

3. Orders each party to bear its own costs.