Appeal brought on 16 May 2008 by American Clothing Associates SA against the judgment delivered on 28 February 2008 by the Court of First Instance (Fifth Chamber) in Case T-215/06, American Clothing Associates SA v OHIM

(Case C-202/08 P)

(2008/C 209/29)

Language of the case: French

Parties

Appellant: American Clothing Associates SA (represented by: P. Maeyaert, N. Clarembeaux and C. De Keersmaeker, lawyers)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Form of order sought

Pleas in law and main arguments

The appellant raises a single plea in law in support of its appeal, alleging infringement of Articles 7(1)(h) of the Community Trade Mark Regulation and 6ter(1)(a) of the Paris Convention for the Protection of Intellectual Property of 20 March 1883, as revised and amended. (2) That plea is essentially based on four arguments.

By its first argument, the appellant complains that the judgment under appeal failed to have regard to the relevance of the essential function of a State emblem when assessing the scope of protection of an emblem. A State emblem refers to symbols of the identity and sovereignty of a State, which are designed according to an artistic language and a very precise science, relating to armorial bearings. Whatever its nature, an emblem could therefore be refused registration as a trade mark or an element of a trade mark only if it is capable of undermining the identity or sovereignty of a State. However, the mere reproduction of a sign similar to a State emblem displaying no, or few, heraldic characteristics as an element of a trade mark is not such as to affect the essential function of that emblem.

By its second argument, the appellant criticises the Court of First Instance for having failed to have regard to the relevance of the heraldic characteristics of a State emblem by holding that a number of artistic interpretations of one and the same emblem on the basis of the same heraldic description are possible. According to the appellant, Article 6ter(1)(a) of the Paris Convention and the concept of ‘imitation from a heraldic point of view’ do not seek to protect the symbol as such, but seek to protect a very precise artistic interpretation or a specific graphic work resulting from the implementation of the rules governing heraldic art and science.

By its third argument, the appellant complains that the judgment under appeal misconstrued the scope of the concept of ‘heraldic imitation’ and, in so doing, that it affirms an interpretation of the Community Trade Mark Regulation and the Paris Convention which confers on the States concerned a virtually absolute monopoly on signs having no heraldic characteristics or no heraldic characteristics which are very pronounced in relation to their registration or use as an element of a trade mark.

By its fourth argument, the appellant lastly criticises the Court of First Instance for having rejected at the outset, as irrelevant, certain circumstances specific to the present case, such as the nature of the heraldic characteristics whose protection is relied on, the overall impression given by a trade mark which contains as an element a State emblem or an imitation thereof, the nature of the protection offered in the country of origin of the State emblem concerned or the conditions of use of the trade mark concerned.

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2)  United Nations Treaty Series, Vol. 828, No 11847, p. 108.