Office for Harmonisation in the Internal Market (OHIM) v. BORCO-Marken-Import Matthiesen GmbH & Co. KG

[2011] E.T.M.R. 4, Case C-265/09 (2010)

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Office for Harmonisation in the Internal Market (OHIM) v. BORCO-Marken-Import Matthiesen GmbH & Co. KG

European Union Court of Justice
[2011] E.T.M.R. 4, Case C-265/09 (2010)

Facts

BORCO-Marken-Import Matthiesen GmbH & Co. KG (BORCO) (defendant) filed an application to register the lowercase Greek letter a (a) as a community trademark (CTM) in the European Union (EU). It attempted to register the figure as a mark signifying a brand of wines, sparkling wines, and spritzers. In May 2006, the examiner denied BORCO’s application, concluding that the figure lacked the distinctive character required to register a trademark by Article 7(1)(b) of EU Regulation No. 40/94. Because the mark was an a bearing no modifications or other additions, the examiner held that potential Greek consumers would not be able to understand it as distinguishing the commercial goods listed. BORCO appealed to the Office for Harmonisation in the Internal Market (OHIM) (plaintiff). OHIM dismissed the appeal, agreeing with the examiner that the sign lacked a distinctive character under Article 7(1)(b). BORCO then sought an annulment of OHIM’s dismissal with the European General Court. The General Court found that OHIM had erred by concluding that a single letter could not have a distinctive character without performing a factual analysis on the specific circumstances of whether that letter was capable of distinguishing BORCO’s products from its competitors’ products in the minds of those products’ consumers. OHIM appealed.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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