Biologisch materiaal

GvEA, 20 januari 2009, zaak T-424/07, Pioneer Hi-Bred International, Inc. tegen OHIM (Nederlandse vertaling nog niet beschikbaar). 

Terechte weigering woordmerk OPTIMUM voor klasse 1, ‘Biological material namely plant tissue genes and gene-sequences for agricultural purposes’.

“26. Lastly, although it is true, as the Board of Appeal pointed out in paragraph 21 of the contested decision, that, due to its generic meaning which tends to exalt in an unspecified manner the nature, function, quality or one of the qualities of any product, the sign OPTIMUM does not enable the consumer to imagine to what type of goods it refers, the fact nevertheless remains, as the Board of Appeal also correctly stated in the same paragraph of the contested decision, that, precisely because it is commonly used in everyday language, as well as in trade, as a generic laudatory term, that word sign cannot be regarded as appropriate for the purpose of identifying the commercial origin of the goods which it designates and, therefore, of performing the essential function of a trade mark.”

(…) 45. In the present case, first, it is apparent from the analysis carried out in the context of the first plea that the Board of Appeal established to the requisite legal standard that the mark applied for was devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 in relation to the goods concerned, by stating, in paragraph 23 of the contested decision, that the mark, as a laudatory expression, relates to any kind of goods including the goods applied for in Class 1 of the Nice Agreement. That statement of reasons is sufficient, first, to allow the applicant to know the justification for the measure adopted so as to enable it to protect its rights and, secondly, to enable the Court to review the legality of the contested decision.”

Lees het arrest hier.