Here Comes The Sunrider

is grateful to Kathrin Vowinckel of Kilpatrick Stockton, who has provided him alongside the pertient points of the Sunrider decision:

OHIM objected to the application for the give-and-take grade TOP roofing "food made of herbs,..." (class 05) in addition to "supplements made of herbs" (class 29) on the solid soil of Art. 7(1)(b) in addition to (c) CTMR.

Amongst others, the CFI had to consider

- ... the linguistic communication of the proceedings. The application had been filed inward Greek, minute linguistic communication was English. It appears that all correspondence betwixt the parties earlier the OHIM Examiner equally good equally the BoA was inward English linguistic communication (even the appeal detect in addition to arguments). The CFI ruled that operate of the English linguistic communication language was reverse to Art. 115 (4) CTMR (following Kik v OHIM, C-361/01P). However, the claimant's rights had non been infringed because in that place had non been whatsoever disadvantage to the claimant. The claimant was able to fully empathise all the issues relating to the matter, in addition to had made operate of its correct to file bear witness (in back upwardly of acquired distinctiveness - in addition to which were also inward English).

- whether the proceedings took unreasonably long (the appeal was filed on seven June 1999 in addition to the BoA determination passed on xxx May 2002). The claimant argued that the BoA had infringed its rights nether the European Human Rights Convention. The CFI ruled that fifty-fifty if in that place was an infringement of the regulation that decisions must locomote taken inside a reasonable stream of fourth dimension this would non automatically outcome inward an invalidation of the relevant decision. And inward whatsoever event, the CFI pointed out that the claimant did non conduct maintain an involvement inward an invalidation of the determination equally this would outcome inward the affair to locomote referred dorsum to the BoA - in addition to would prolong the proceedings to the claimant's disadvantage.

- an infringement of Art. 73 CTMR - the BoA determination on non-distinctiveness was based on an Internet search the results of which had non been passed on to the claimant. The CFI did non concord equally the BoA had based its determination non exclusively on the results from the Internet search, but had moreover argued that the term "top" was generic, commons or used oftentimes inward observe of the products covered past times the application (similarly to the words "best", "excellent" in addition to "super")...

- that the arguments set forrad past times the BoA were also vague. The CFI pointed out that the argumentation was indeed brief but did non concord that it was vague - it was sufficient to betoken to the laudatory grapheme of the grade which informed consumers of the real high lineament of the relevant products. And equally concerned the non-distinctiveness of the mark, the BoA had argued (in paragraphs 41 to 50 of its decision) that the sign was exactly a term which was commons or oftentimes used inward connectedness alongside the relevant products.

- Art. 7(1)(b) in addition to (c). On Art. seven (1) (b), the CFI agreed alongside the BoA in addition to approximately repeated the arguments already mentioned higher upwardly (generic in addition to laudatory character, etc.). Consequently, Art. 7(1)(c) was non considered.

- whether the BoA had made a error inward considering the bear witness filed past times the claimant. The claimant argued that the BoA considered the bear witness separately when inward fact (and according to Art. 7(3) CTMR) it should conduct maintain been considered equally a whole. The CFI ruled that the bear witness provided (catalogues without appointment in addition to indication of geographic origin, sales figures) were documents in addition to data of a dissimilar sort in addition to that the BoA had non made a error inward considering them separately.

Therefore, the claimant was unsuccessful on all grounds.