Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v BORCO-Marken-Import Matthiesen GmbH & Co. KG (C-265/09 P)

Judgment of 9 Sept 2010

law://eu/cjeu/2009/c-265-09/para_14@2026-11-12

14The General Court continued with its assessment of the decision of the Fourth Board of Appeal of OHIM as follows:53 Fourthly, the [Fourth] Board of Appeal [of OHIM] found, in paragraph 25 of the decision [in question], that the reference public “might” view the letter “α” as a reference to quality (“A” quality), an indication of size, or of a type or kind of alcoholic beverage, such as those covered by the application.54 OHIM cannot claim that, in making such a finding, the [Fourth] Board of Appeal [of OHIM] carried out an examination as to whether, on the facts, the sign at issue had distinctive character. As well as being of a doubtful nature which renders it valueless, that ground does not refer to any specific fact capable of substantiating the finding that the mark at issue would be perceived by the relevant public as a reference to quality, an indication of size, or of a type or kind, in respect of the goods covered by the application (see, to that effect, [Case T-302/06 Hartmann v OHIM (E) [2008] ECR II-132], paragraph 44). It follows that the [Fourth] Board of Appeal [of OHIM] failed to establish that the sign at issue lacked distinctive character.’

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v BORCO-Marken-Import Matthiesen GmbH & Co. KG (C-265/09 P)

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