In Case T-479/08, the General Court was faced with a case involving the two following figurative signs:

              v                                  

Contested CTM - Patrick Holding ApS             Earlier German TM- Adidas AG

Unfortunately, there was no debate on the substance but on a procedural point, the GC confirmed that the Board of Appeal had rightly rejected the opposition on the ground that the earlier trade mark registration No 39950559 had not been properly substantiated.

The Board of Appeal found that since certain elements in the extract from the online register of the Deutsches Patent- und Markenamt, relied on in support of the earlier mark No39950559, had not been translated into the language of the proceedings – English – that extract did not enable the existence, validity and scope of the earlier mark at issue to be ascertained. Although the regulation does not differentiate between the various types of marks when their distinctiveness is being assessed, the fact remains that the type of mark is a factor in such an assessment, since distinctiveness may prove more difficult to establish depending on whether a three-dimensional or a figurative mark is involved.

Consequently, in relation to that earlier right – and contrary to what the Opposition Division had decided – the Board of Appeal rejected the opposition as unfounded and rightly did so without infringing Rule 16(3), Rule 17(2) or Rule 20(2) of Regulation No2868/95.