Judgment of the Court of First Instance (Seventh Chamber) of 10 December 2008 – Bateaux mouches v OHIM – Castanet (BATEAUX MOUCHES)

(Case T-365/06)

Community trade mark – Invalidity proceedings – Community word mark BATEAUX MOUCHES – Absolute grounds for refusal – Lack of distinctive character – Article 7(1)(b) and Article 51(1) of Regulation (EC) No 40/94 – Lack of distinctive character acquired through use – Article 7(3) and Article 51(2) of Regulation No 40/94

Community trade mark – Surrender, revocation and invalidity – Absolute grounds of invalidity (Council Regulation No 40/94, Arts 7(1)(b) and 51(1)(a)) (see paras 20, 29)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 7 September 2006 (Case R 1172/2005-1) relating to invalidity proceedings between Jean-Noël Castanet and Compagnie des bateaux mouches SA.

Information relating to the case

Community mark of which cancellation is sought:	Word mark BATEAUX MOUCHES for services in Classes 39, 41 and 42 –Community mark No 1336122
Proprietor of the Community trade mark:	Compagnie des bateaux mouches SA
Party applying for cancellation:	Jean-Noël Castanet
Decision of the Cancellation Division:	Application for cancellation dismissed
Decision of the Board of Appeal:	Decision of the Cancellation Division set aside

Operative part

The Court:

1.

Dismisses the action;

2.

Orders the Compagnie des bateaux mouches SA to pay the costs.