Judgment_paragraph 13 · European Union Intellectual Property Office v Celltech R&D Ltd (C-273/05 P)

13After noting, in paragraph 34 of the judgment under appeal, that the Board of Appeal had held that the term celltech ‘designated activities in the field of cell technology and products, apparatus and equipment used in connection with, or resulting from, such activities’, the Court of First Instance examined, in paragraphs 35 to 41 of that judgment, whether the Board of Appeal had shown that the mark applied for was descriptive of the goods and services referred to in the application for registration. The Court concluded that it had not, for the following reasons:36 In that regard, it must be noted that neither the Board of Appeal nor OHIM has given an explanation of the meaning in scientific terms of cell technology. OHIM merely produced as an annex to its response an extract from the Collins English Dictionary showing the definitions of the terms “cell” and “tech”.37 Neither the Board of Appeal nor OHIM explained in what way those terms give any information about the intended purpose and nature of the goods and services referred to in the application for registration, in particular about the way in which those goods and services would be applied to cell technology or how they would result from it.38 Admittedly, it is the case that the goods and services to which the application for registration relates are in general terms pharmaceutical goods and services and, on that account, have a connection with bodies which are composed of cells. However, the Board of Appeal did not show that the relevant public would immediately and without further reflection make a definite and direct association between the pharmaceutical goods and services claimed and the meaning of the word mark CELLTECH (see, to that effect, Case T-359/99 DKV v OHIM (EuroHealth) [2001] ECR II-1645, paragraph 35).39 Furthermore, even supposing that the goods and services concerned may be used for functional purposes involving cell technology, that fact would not be sufficient for a finding that the word mark CELLTECH may serve to designate their intended purpose. Such use of them constitutes at most one of many possible areas of use, but not their technical function ([Case T-356/00 DaimlerChrysler v OHIM (CARCARD) [2002] ECR II-1963,] paragraph 40).40 It follows from the foregoing considerations that the Board of Appeal did not establish that the term “celltech”, even taken as meaning cell technology, is such as to be immediately and unambiguously perceived as designating activities in the field of cell technology and products, apparatus and equipment used in connection with or resulting from such activities. Nor did it establish that the public targeted will view it purely as an indication of the type of goods and services designated by the sign.41 Consequently, the Court must hold that the Board of Appeal did not demonstrate that the word mark CELLTECH was descriptive of the goods and services in respect of which registration was sought’