Case T-189/07

Frosch Touristik GmbH

v

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

‛Community trade mark — Invalidity proceedings — Community word mark FLUGBÖRSE — Material date for the examination of an absolute ground for invalidity — Article 51(1)(a) of Regulation (EC) No 40/94 (now Article 52(1)(a) of Regulation (EC) No 207/2009)’

Judgment of the Court of First Instance (Fifth Chamber), 3 June 2009   II ‐ 1505

Summary of the Judgment

Community trade mark — Surrender, revocation and invalidity — Absolute grounds of invalidity

(Council Regulation No 40/94, Art. 51(1)(a))

The relevant date for the purposes of the assessment of an application for a declaration of invalidity under Article 51(1)(a) of Regulation No 40/94 on the Community trade mark is the date of filing of the application for the mark at issue. The fact that the case-law allows material subsequent to that date to be taken into account, far from weakening that interpretation of that article, reinforces it, since it is only possible to take such material into account if it relates to the situation on the date of filing of the trade mark application. That interpretation of Article 51(1)(a) of Regulation No 40/94 is the only interpretation which avoids a situation in which the probability of the mark losing its registrability increases with the length of the registration procedure. An interpretation under which the necessary conditions must be met at the time of the application for registration and must continue to be met up until registration of the mark would amount, conversely, to making the registration of the mark dependent, in part, on a contingency, namely the length of the registration procedure. In that regard, it should be noted that that consideration, relating to the length of the registration procedure, is one of the reasons why Article 7(3) of Regulation No 40/94 has been interpreted as requiring that the acquisition of distinctive character through use take place before the filing of the trade mark application.

(see paras 19, 20)