Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (First Chamber)

3 March 2015 (*)

(Community trade mark — Applications for figurative Community trade marks representing boards for parlour games — Absolute grounds for refusal — Lack of distinctive character — Regulation (EC) No 207/2009, Article 7(1)(b) and Article 7(3))

In Joined Cases T‑492/13 and T‑493/13,

Schmidt Spiele GmbH, established in Berlin (Germany), represented by T. Sommer, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Schifko, acting as Agent,

defendant,

ACTION brought against the decisions of the First Board of Appeal of OHIM of 3 July 2013 (Cases R 1767/2012-1 and R 1768/2012-1), relating to applications for registration as Community trade marks of figurative marks representing boards for parlour games,

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,

Registrar: E. Coulon,

having regard to the applications lodged at the Court Registry on 13 September 2013,

having regard to the response lodged at the Court Registry on 29 November 2013,

having regard to the decision of 9 January 2014 refusing leave to submit a reply,

having regard to the order of 11 November 2013 joining Cases T‑492/13 and T‑493/13 for the purposes of the written procedure, the oral procedure and the final judgment,

having regard to the fact that no application for a hearing was submitted by the parties within a period of one month from notification of closure of the written procedure and having, therefore, decided, acting on a report of the Judge-Rapporteur and pursuant to Article 135a of the Rules of Procedure of the General Court, to give a ruling without an oral procedure,

gives the following

Judgment (1)

…

 Form of order sought by the parties

6        The applicant claims that the Court should:

–        annul the contested decisions;

–        order OHIM to pay the costs.

7        OHIM contends that the Court should:

–        dismiss the actions;

–        order the applicant to pay the costs.

 Law

 Concerning the absence of an application for a hearing

8        After the submission of pleadings as provided for in Article 135(1) and, if applicable, Article 135(2) and (3), of the Rules of Procedure, the Court, acting upon a report of the Judge-Rapporteur and after hearing the parties, may decide to rule on the action without an oral procedure, unless one of the parties submits an application setting out the reasons for which he wishes to be heard. That application is to be submitted within a period of one month from notification to the party of closure of the written procedure.

9        In the applications initiating proceedings the applicant requested the Court to organise a hearing, having regard, inter alia, to the novelty of the issue of ascertaining whether a board for a game may be registered as a mark. That request cannot be taken into consideration because it is premature in the light of the provisions of Article 135a of the Rules of Procedure.

10      According to the scheme and the wording of that article an application for a hearing, and the assessment by the Court of the benefits of a hearing, can only take place once the written procedure is closed and the parties and the Court are in possession of the complete case file and the arguments raised by all the parties, and are thus in a position to decide whether a hearing would be useful. Moreover, lodgement of an application for a hearing before notification of the closure of the written procedure cannot be justified on the grounds of economy of procedure since, pursuant to Article 135a of the Rules of Procedure, the Court may decide to rule without an oral procedure only after closure of the written procedure and after giving the parties the opportunity to take advantage of that provision.

11      Finally, it should be noted that, in a letter of 13 January 2014 notifying the applicant of the rejection of his application to lodge a reply and of closure of the written procedure, the Court Registry drew the applicant’s attention to the provisions of Article 135a of the Rules of Procedure and indicated that the time-limit for lodging an application for a hearing, runs solely from notification of the closure of the written procedure. However, the applicant did not lodge a new application for a hearing within the time-limit of one month laid down by Article 135a.

12      In those circumstances that the Court has decided to rule without an oral procedure, pursuant to Article 135a of the Rules of Procedure.

…

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Annuls the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2013 (Cases R 1767/2012-1 and R 1768/2012-1), in so far as they dismiss the applications of Schmidt Spiele GmbH for goods and services other than ‘computers’, ‘ (programs for) computer games ; programs for video games recorded on cartridges, disks, CD-ROM, cassettes, tapes and mini-disks’, ‘computer software [recorded programs]; computer programs (downloadable); computer software [recorded programs]’, in Class 9, ‘goods made from paper and cardboard (included in Class 16); matter printed in colour’, in Class 16, ‘games [including electronic games and video games] except as apparatus adapted for screens or external monitors’, ‘playing cards’, ‘parlour games; games of cards’, ‘portable apparatus for electronic games’, ‘parlour games’ and ‘video games being apparatus adapted for use with screens or external monitors’, in Class 28, and ‘entertainment’, ‘arranging and conducting of entertainment events’ and ‘services in the field of leisure activities’, in Class 41.

2.      Dismisses the action as to the remainder.

3.      Orders Schmidt Spiele to bear one-half of the costs incurred by OHIM, as well as one-half of its own costs. Orders OHIM to bear one-half of the costs incurred by Schmidt Spiele, as well as one-half of its own costs.

Delivered in open court in Luxembourg on 3 March 2015.

[Signatures]

* Language of the case: German.

1 – Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.

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