FRIDAY, 9 MAY 2008
Yesterday in Luxembourg
The Court of Justice yesterday issued its decision in Case C-304/06 P Eurohypo v OHIM, in which it ruled in favour of the Community trade mark applicant that the Court of First Instance had found the word EUROHYPO to be lacking in distinctive character for financial services on the basis that it was effectively descriptive, without addressing the criteria of distinctiveness and their attendant policy considerations. The appeal was however dismissed on the basis that the applied-for mark failed to achieve the criteria of distinctiveness on the grounds previously stated by the Board of Appeal.
On the same day, Advocate General Bot gave an Opinion in Case C-144/07 P K-Swiss v OHIM. This is a dispute as to whether the day upon which a notice sent by courier is received by its recipient is deemed to be the date of notification of its contents. The Advocate General, advising the Court to set aside the order of the Court of First Instance and remit the case for further consideration, says (among other things):
" ... account should be taken of the fact that, where the Office effects notification by telecopier and receipt of the fax is disputed, the Office also does not have a document that it can rely on against the addressee with an evidential value equivalent to that of an advice of delivery. That is why it would be inconsistent with the system of notification provided for in Regulation No 2868/95 to consider that communication by express courier cannot be treated like notification by registered letter with advice of delivery, when such a communication, in contrast to a mere fax, gives rise, as a rule, to the signing of a receipt which can, if necessary, be sent to the Office.".
The Curia website also records the lodging of an appeal to the Court in Case C-81/08 P, Miguel Cabrera Sánchez v OHIM and Industrias Cárnicas Valle, S.A. This is an application to set aside the judgment of the Court of First Instance of 13 December 2007 in Case T-242/06. The appellant seeks annulment of the decision that its own EL CHARCUTERO and the earlier EL CHARCUTERO ARTESANO are "clearly incompatible".
Posted by: Jeremy Phillips @ 10.25