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Document 62013TJ0484

    Lumene v OHIM (THE YOUTH EXPERTS)

    Judgment of the General Court (Third Chamber) of 18 November 2014 —

    Lumene v OHIM (THE YOUTH EXPERTS)

    (Case T‑484/13)

    ‛Community trade mark — Application for Community word mark THE YOUTH EXPERTS — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009 — Extent of the examination to be carried out by the Board of Appeal — Examination as to the merits conditional on the admissibility of the action — First sentence of Article 59 of Regulation No 207/2009’

    1. 

    Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office — Not included (Council Regulation No 207/2009, Art. 65(6)) (see para. 14)

    2. 

    Community trade mark — Appeals procedure — Appeal to a Board of Appeal — Competence of the Boards of Appeal — New full examination of the merits — Condition — Admissibility of the action (Council Regulation No 207/2009, Arts 59, first sentence, and 64(1)) (see paras 22-24)

    3. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Concept (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 30)

    4. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Assessment of distinctive character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 31)

    5. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Distinctive character — Application of specific criteria for assessment — Not permissible (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 32-34)

    6. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Slogan with a fantasy character (Council Regulation No 207/2009, Art. 7(1)(b)) (see para. 35)

    7. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Marks constituted of advertising slogans — Flattering promotional formula (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 36, 37)

    8. 

    Community trade mark — Definition and acquisition of the Community trade mark — Absolute grounds for refusal — Marks devoid of any distinctive character — Word mark THE YOUTH EXPERTS (Council Regulation No 207/2009, Art. 7(1)(b)) (see paras 42-45)

    9. 

    Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice (see para. 56)

    10. 

    Community trade mark — Definition and acquisition of the Community trade mark — Assessment of the registrability of a sign — Account to be taken only of Community legislation — Earlier registration of the mark in certain Member States or third countries — Decisions not binding Community bodies (Council Regulation No 207/2009) (see para. 59)

    Re:

    ACTION brought against the decision of the Second Board of Appeal of OHIM of 26 June 2013 (Case R 187/2013‑2) concerning an application for registration of the word sign THE YOUTH EXPERTS as a Community trade mark.

    Operative part

    The Court:

    1. 

    Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 June 2013 (Case R 187/2013‑2) as regards ‘[b]leaching preparations and other substances for laundry use [and] cleaning, polishing, scouring and abrasive preparations’ in Class 3 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and ‘[s]anitary preparations for medical purposes[,] plasters, materials for dressings[,] material for stopping teeth [and] dental wax[,] disinfectants[,] preparations for destroying vermin[,] fungicides [and] herbicides’ in Class 5 of that agreement;

    2. 

    Dismisses the action as to the remainder;

    3. 

    Orders each party to bear its own costs.

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