Notice for the OJ

 

Action brought on 4 August 2005 - Cain Cellars v OHIM

(Case T-304/05)

Language in which the application was lodged: German

Parties

Applicant: Cain Cellars, Inc. (St. Helena, United States) (represented by: W.-W. Wodrich, lawyer, and J.K.F. Albrecht, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

The applicant claims that the Court should:

annul the decision of the defendant (First Board of Appeal) of 23 May 2005 in Case R 0975/2004-1;

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The figurative mark in the form of a pentagon for 'Wine' goods in Class 33 - Application No 3 425 121

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: It is irrelevant from a legal viewpoint that the mark applied for is a geometric figure, since in respect of the role of trade marks and their capability of working as company signs, only the assessment of the average consumer who is reasonably well informed and reasonably observant and circumspect is relevant.

The defendant has breached that principle of assessment in the contested decision. The figure in the form of a pentagon is unusual and striking and therefore has distinctive character and indicates the company origin. Article 7(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark does not thereby preclude registration of the mark of the applicant for which protection is sought.

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