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Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

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Schwaaner Fischwaren GmbH

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set aside the judgment of the General Court of the European Union of 21 September 2011 in Case T-201/09 and annul the decision of the Fourth Board of Appeal of OHIM of 20 March 2009 in appeal case R 230/2007-4;

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in the alternative, set aside the judgment referred to above and refer the case back to the General Court of the European Union;

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order the respondent to pay the costs of the proceedings.

In the judgment under appeal, the General Court wrongly assumed that the registration of the word sign SCOMBER MIX as a Community trade mark was precluded by the absolute ground for refusal in Article 7(1)(c) of Regulation No 207/2009 (1) as a result of the descriptive character of the mark in dispute.

The General Court's assumption constitutes an infringement of Article 7(1)(c) in conjunction with Article 51(1)(a) of Regulation No 207/2009. The word sign SCOMBER MIX is not descriptive since, from the point of view of the relevant consumer, it is a purely fanciful name, which is clearly understood to be a trade mark.

The goods and services covered by the trade mark application at issue were determined with the average consumer in mind. However, the average consumer is not familiar with the Latin language or the zoological term ‘scomber’. The word sign SCOMBER MIX therefore satisfies the minimum level of distinctiveness required under European Union law for the registration of a Community trade mark.