Judgment of the General Court (Sixth Chamber) of 9 March 2011 – Longevity Health Products v OHIM – Performing Science (5 HTP)

(Case T-190/09)

Community trade mark – Invalidity proceedings – Community word mark 5 HTP – Absolute ground for refusal – Signs or indications which have become customary – Article 7(1)(d) of Regulation (EC) No 207/2009 – Distinctive character acquired by use – Article 52(2) of Regulation No 207/2009

1.                     Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications which have become customary in everyday language or commerce – Commonplace character – Criteria for assessment (Council Regulation No 207/2009, Art. 7(1)(d)) (see paras 26-27)

2.                     Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity – Registration contrary to Article 7(1)(d) of Regulation No 207/2009 – Exception – Acquisition of distinctive character through use (Council Regulation No 207/2009, Arts 7(1)(d) and 52(2)) (see paras 31, 37-40, 52)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 21 April 2009 (Case R 595/2008-4) relating to invalidity proceedings between Performing Science LLC and Longevity Health Products Inc.

Information relating to the case

Registered Community trade mark of which cancellation sought:	Word mark 5 HTP for goods and services in Classes 5, 16 and 35 – Community trade mark No 2846483
Proprietor of the Community trade mark:	Longevity Health Products, Inc.
Party requesting the declaration of invalidity of the Community trade mark:	Performing Science LLC
Decision of the Cancellation Division:	Application for declaration of invalidity of the trade mark concerned partially granted
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. 1. Dismisses the action;

2. 2. Orders Longevity Health Products Inc. to pay the costs.