This week in Luxembourg

The IPKat can tell readers that this week will be a bounteous week for intellectual property-related decisions from the European Court of Justice (ECJ) and the Court of First Instance (CFI).

On Tuesday 6 November the CFI gives judgment in Case T-28/06 RheinfelsQuellen H. Hövelmann v OHIM. This is an application for annulment of Decision R 1179/2004-2 of the Second Board of Appeal, dismissing the appeal against the examiner's decision to refuse to register the word mark "VOM URSPRUNG HER VOLKOMMEN" for goods in Classes 32 and 33 (per Babel Fish, this is the German for "from the origin volume-come", though the Kat suspects that a more stylish translation may be forthcoming).


The same day is make-or-break day for Case T-407/05 SAEME v OHIM - Racke. This is an action for annulment brought by the proprietor of the national and international word mark EVIAN for goods in Classes 32 and 33 against decision R 82/2002-4 of the Fourth Board of Appeal, which dismissed its appeal against the decision of the Opposition Division to reject its opposition to an application to register as a Community trade mark the figurative mark 'REVIAN's' for goods in Class 32.


There's even more to come, in the form of judgment in Case T-90/05 Omega v OHIM - Omega Engineering (Ω OMEGA). This time we have an action brought by an applicant to register the word and figurative mark 'Ω OMEGA' for goods and services in Classes 3, 9, 14, 16, 25, 28, 35, 37, 38, 41 and 42. This action challenges Decision R 330/2002-2 of the Second Board of Appeal, which dismissing its appeal against the decision of the Opposition Division to refuse registration 'Ω OMEGA' following an opposition brought by the holder of the national word marks 'OMEGA' for goods and services in Classes 9 and 42.


On Wednesday the CFI is back in action again, giving judgment in Case T-57/06 NV Marly v OHIM - Erdal (Top iX). This is an action for annulment brought by the applicant to register as a Community trade mark the figurative trade mark 'Top iX' for goods in Class 3 against Decision R 114/2004-2 of the Second Board of Appeal, dismissing the appeal against the Opposition Division's decision refusing to register that trade mark in the opposition proceedings brought by the proprietor of the international word mark 'TOFIX' for goods in Classes 3 and 4.


On Thursday 8 November it's the turn of the ECJ itself, with the publication of the Advocate General's Opinion in Case C-304/06 P Eurohypo v Office for Harmonisation in the Internal Market. According to Eurohypo,

"The Court of First Instance misinterpreted the requirements of the Office's duty to examine of its own motion under the first sentence of Article 74(1) of Regulation No 40/94. ... neither the judgment nor the preceding decisions ... contained findings of fact as to the allegedly descriptive character of 'EUROHYPO'. Instead, the findings were confined to possible descriptive meanings of the individual components 'EURO' and 'HYPO'. No other findings of fact were made on the descriptive character of the designation 'EUROHYPO' as a whole.

... the respondent confined itself, in the contested appeal decision, to finding that the components 'EURO' and 'HYPO' were descriptive and the overall concept did not convey an overall impression that went beyond the sum of its parts, without explaining why the compound word EUROHYPO as a whole could not distinguish the services of the appellant from those of other undertakings.

The judgment of the Court of First Instance was also based on the use of a criterion according to which a mark made up of descriptive components may be capable of registration if the compound word has entered general linguistic use and has acquired a meaning of its own, it then being necessary to examine whether that word is not itself descriptive. That criterion is relevant in the context of Article 7(1)(c) of Regulation No 40/94 for the question of a possible need to leave the mark free, but it is not the criterion that applies to the interpretation of Article 7(1)(b) on ascertaining distinctive character. By the use of that criterion, relevant in the context of Article 7(1)(c) of Regulation No 40/94, as a basis of its decision to dismiss the action, the Court of First Instance erred in law in its interpretation of Article 7(1)(b) of Regulation No 40/94". [The poor Kat has read this paragraph three times and still can't work out exactly what it means. It sounds jolly good, though. Merpel says, perhaps it means the appellant can't think of anything better to say ...].

Later that same day, judgment is being given in Case C-20/05 Schwibbert. This is a reference for a preliminary ruling from Italy on a point of copyright/criminal law that you can read all about on this weblog here, thanks to the IPKat's friend Katja Weckström.


Also on Thursday 8 November the CFI gives judgment in Case T-459/05 MPDV Mikrolab v OHIM. This is an application for annulment of decision R 1059/2004-2 of the Second Board of Appeal, dismissing the appeal against the examiner's decision to refuse to register the word mark 'manufacturing score card' for goods and services in Classes 9, 35 and 42.


Finally, the CFI gives judgment in Case T-169/06 Charlott v OHIM - Charlo (Charlott France Entre Luxe and Tradition). This is an action for annulment brought by the applicant to the figurative mark 'Charlott France Entre Luxe et Tradition' for goods in Class 25 against Decision R 223/2005-2 of the Second Board of Appeal to annul the decision of the Opposition Division rejecting the opposition brought by the holder of the national mark 'Charlot' for goods in Class 25.