Action brought on 27 February 2006 - ENERCON v OHIM

(Case T-71/06)

Language of the case: German

Parties

Applicant: ENERCON GmbH (Aurich, Germany) (represented by R. Böhm, lawyer)

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 30 November 2005 (Case 0179/2005-2);

Order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: three-dimensional mark in the form of a section of a wind turbine for goods in Class 7 - Application No 2 496 743

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 on the ground that the shape of the product covered by the mark is outside the usual range of forms. The three-dimensional mark is therefore distinctive.

Infringement of Article 7(3) of the Regulation inasmuch as the Board of Appeal, after considering the circumstances, should have invited the applicant to provide further opinions, if this could have led to constituting evidence for the purpose of Article 7(3).

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