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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> The Smiley Company v OHMI (Representation de la moitie d'un sourire de smiley) (Intellectual property) [2009] EUECJ T-139/08 (29 September 2009) URL: https://www.bailii.org/eu/cases/EUECJ/2009/T13908.html Cite as: [2009] EUECJ T-139/8, [2009] EUECJ T-139/08 |
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(Community trade mark ' International registration designating the European Community Figurative mark representing half a smiley smile Absolute ground for refusal Lack of distinctive character Article 146(1) and Article 7(1)(b) of Regulation (EC) No 40/94 (now Article 151(1) and Article 7(1)(b) of Regulation (EC) No 207/2009)
In Case T-139/08,
The Smiley Company SPRL, established in Brussels (Belgium), represented by A. Deutsch, lawyer,
applicant,
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by J. Crespo Carrillo, acting as Agent,
defendant,
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 7 February 2008 (R 958/2007-4) concerning the international registration, designating the European Community, of the figurative mark representing half a smiley smile,
composed of V. Tiili, President, F. Dehousse and I. Wiszniewska-Białecka (Rapporteur), Judges,
Registrar: K. Pocheć, Administrator,
having regard to the application lodged at the Registry of the Court of First Instance on 11 April 2008,
having regard to the response lodged at the Registry of the Court of First Instance on 31 July 2008,
having regard to the Court's written question to the parties,
having regard to the observations lodged by the parties at the Registry of the Court of First Instance on 8, 15 and 30 April 2009,
having regard to the order of 4 June 2009 authorising the replacement of a party to the proceedings,
further to the hearing on 10 June 2009,
gives the following
Background to the dispute
Class 14: 'Precious metals and alloys thereof other than for dental use, jewellery, precious stones, timepieces and chronometric instruments, silverware (dishes), works of art of precious metal, boxes, cases and chests of precious metal, bracelets (jewellery), brooches (jewellery), sun dials, ashtrays (of precious metal) for smokers, chains (jewellery), hat ornaments (of precious metal), chronographs (watches), chronometers, fancy key rings, necklaces (jewellery), tie pins, household and kitchen containers, kitchen and household utensils of precious metal, pins (jewellery), clocks, badges of precious metal, cuff links, medals, purses of precious metal, watches, watchbands, silverware (with the exception of cutlery, table forks and spoons), ornaments (jewellery), wall clocks (timepieces), napkin holders of precious metal, alarm clocks, services (tableware) of precious metal, urns of precious metal, sacred vessels of precious metal';
Class 18: 'Trunks and suitcases, umbrellas, parasols and walking sticks, whips and saddlery, animal collars and leashes, boxes of leather or leather board, purses, walking-stick seats, satchels, card cases (wallets), hat boxes of leather, key cases (leatherware), vanity cases, document holders, school bags, net bags for shopping, clothing for animals, attaché cases, change purses (not of precious metal), sunshades, wallets, sling bags for carrying infants, backpacks, handbags, beach bags, travelling bags, bags (envelopes, pouches) for packaging (of leather), garment bags (for travel), briefcases (leatherware), travelling sets (leatherware)';
Class 25: 'Clothing, footwear (except orthopaedic footwear), bathing suits, bath robes, bibs not of paper, berets, hosiery, boots, suspenders, boxer shorts, caps, belts (clothing), hats, sports shoes, masquerade costumes, diaper pants, ear muffs (clothing), neckties, sashes for wear, scarves, gloves (clothing), layettes, slippers, soles, underwear, aprons (clothing), sportswear'.
Forms of order sought
annul the contested decision;
order OHIM to pay the costs.
dismiss the action;
order the applicant to pay the costs.
Law
Costs
On those grounds,
hereby:
1. Dismisses the action;
2. Orders The Smiley Company SPRL to pay the costs, including those connected with its substitution for Mr Franklin Loufrani.
Tiili |
Dehousse |
Wiszniewska-Białecka |
Delivered in open court in Luxembourg on 29 September 2009.
[Signatures]
* Language of the case: English.