Judgment of the Court of First Instance (Second Chamber) of 20 January 2009 – Pioneer Hi-Bred International v OHIM (OPTIMUM)

(Case T-424/07)

Community trade mark – Application for the Community word mark OPTIMUM – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) of Regulation (EC) No 40/94 – Obligation to state reasons – Examination of the facts of OHIM’s own motion – Articles 73 and 74(1) of Regulation No 40/94

1.                     Community trade mark – Definition and acquisition of the Community trade mark – Absolute grounds for refusal – Marks devoid of any distinctive character (Council Regulation No 40/94, Art. 7(1)(b)) (see paras 23-26, 28, 34)

2.                     Community trade mark – Procedural provisions – Examination of the facts of the Office’s own motion – Scope (Council Regulation No 40/94, Art. 74) (see paras 42-49)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 11 September 2007 (Case R 288/2007-2), concerning an application for registration of the word sign OPTIMUM as a Community trade mark.

Information relating to the case

Applicant for the Community trade mark:	Pioneer Hi-Bred International, Inc.
Community trade mark sought:	Word mark OPTIMUM for goods in Class 1 – Application No 4893053
Decision of the examiner:	Registration refused
Decision of the Board of Appeal:	Appeal dismissed

Operative part

The Court:

1. Dismisses the action;

2. Orders Pioneer Hi-Bred International, Inc. to pay the costs.