Judgment of the General Court (Seventh Chamber) of 21 February 2013 — Laboratoire Bioderma v OHIM — Cabinet Continental (BIODERMA)
(Case T‑427/11)
Community trade mark — Invalidity proceedings — Community word mark BIODERMA — No infringement of the rights of the defence — Article 75 of Regulation (EC) No 207/2009 — Absolute grounds for refusal — Descriptive character — No distinctive character — Article 7(1)(b) and (c) of Regulation No 207/2009
1. Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Art. 75) (see para. 17)
2. Community trade mark — Surrender, revocation and invalidity — Absolute grounds for invalidity — Registration contrary to Article 7(1)(b) and (c) of Regulation No 207/2009 — Word mark BIODERMA (Council Regulation No 207/2009, Art. 7(1)(b) and (c), and 52(1)(a)) (see paras 38-40, 42-55, 62-64)
Re:
| ACTION brought against the decision of the First Board of Appeal of OHIM of 28 February 2011 (Case R 861/2009-1), relating to invalidity proceedings between Cabinet Continental and Laboratoire Bioderma. |
Operative part
The Court:
1. | | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 February 2011 (Case R 861/2009-1) in so far as concerns dietetic substances adapted for medical use, in Class 5; |
2. | | Dismisses the action as to the remainder; |
3. | | Orders Laboratoire Bioderma to bear its own costs and half of those incurred by OHIM and Cabinet Continental; |
4. | | Orders OHIM and Cabinet Continental to bear half of their own costs. |