JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

9 December 2009 (*)

(Community trade mark – Application for the Community word mark SUPERSKIN – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

In Case T‑486/08,

Liz Earle Beauty Co. Ltd, established in Ryde, Isle of Wight (United Kingdom), represented by M. Cover, Solicitor,

applicant,

v

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

defendant,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 September 2008 (Case R 1656/2007‑4), concerning registration of the word sign SUPERSKIN as a Community trade mark,

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro, President, S. Papasavvas and A. Dittrich (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the Court on 14 November 2008,

having regard to the response lodged at the Registry of the Court on 16 February 2009,

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

gives the following

Judgment

 Background to the dispute

1        On 25 May 2007 the applicant, Liz Earle Beauty Co. Ltd, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        The mark for which registration was sought is the word sign SUPERSKIN.

3        The goods and services in respect of which registration was sought are in Classes 3, 5 and 44 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

–        Class 3: ‘Cosmetics: non-medicated toilet preparations; lotions, creams, gels and preparations for the skin; protective lotions, creams and preparations for the skin; cleansing and moisturising creams, oils, lotions and preparations; suntanning, sunscreening and suncare creams, oils, lotions and preparations; aftersun creams and preparations; skin bronzing and skin colouring preparations; anti-sunburn preparations; sunburn ointments; soaps; bath gel; essential oils; lotions, creams and preparations for care of the face, body, scalp, nails and hair; bath preparations; toilet articles; shaving preparations; cleansers, toners; perfumes; antiperspirants, deodorants; dentifrice; talcs; makeup; concealers for spots and blemishes; cosmetics; conditioner; shampoo; hair colouring preparations; hair spray; eyecare preparations; depilatory and exfoliating preparations; nail varnish; nail varnish remover; artificial nails; cotton wool’;

–        Class 5: ‘Nutraceuticals and dietetic foods; foods for babies’;

–        Class 44: ‘Hygienic and beauty care for human beings; cosmetic treatments for the body, face and hair; beauty counselling; cosmetic consultancy; beauty consultancy; beauty therapy; nutrition and dietetic consultancy; information, advisory and consultancy services relating to the aforementioned services’.

4        By decision of 31 August 2007, the application for registration was rejected by the examiner under Article 7(1)(b) and (c) and (2) of Regulation No 40/94 (now Article 7(1)(b) and (c) and (2) of Regulation No 207/2009).

5        On 22 October 2007, the applicant lodged an appeal against that decision at OHIM pursuant to Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009).

6        By decision of 15 September 2008 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal. It found that the trade mark applied for was descriptive of the characteristics of the goods and services concerned, for the purposes of Article 7(1)(c) of Regulation No 40/94, and, on that basis, necessarily devoid of any distinctive character in respect of those goods and services, within the meaning of Article 7(1)(b) of that regulation.

 Forms of order sought

7        The applicant claims that the Court should:

–        annul the contested decision;

–        declare that the application for registration of the trade mark must be published and that the trade mark applied for must be registered;

–        order OHIM to pay the costs.

8        OHIM contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 Admissibility of the applicant’s second head of claim

9        By its second head of claim, the applicant requests, in essence, the Court to order publication of the Community trade mark application and registration of the trade mark applied for. In that regard, it should be recalled that, in accordance with Article 63(6) of Regulation No 40/94 (now Article 65(6) of Regulation No 207/2009), OHIM is required to take the measures necessary to comply with the judgments of the Courts of the European Union. Accordingly, the General Court is not entitled to issue directions to the OHIM. It is for the latter to draw the consequences of the operative part of this judgment and the grounds on which it is based (see, to that effect, Case T‑331/99 Mitsubishi HiTec Paper Bielefeld v OHIM (Giroform) [2001] ECR II‑433, paragraph 33, and Case T‑34/00 Eurocool Logistik v OHIM (EUROCOOL) [2002] ECR II‑683, paragraph 12). The applicant’s second head of claim is therefore inadmissible.

 The application for annulment of the contested decision

10      In support of its application for annulment of the contested decision, the applicant puts forward a single plea alleging an incorrect application of Article 7(1)(c) of Regulation No 40/94, which also results in an infringement of Article 7(1)(b) of that regulation.

 Arguments of the parties

11      The applicant claims that, by finding that the mark applied for was descriptive of the goods and services in respect of which registration was sought, the Board of Appeal infringed Article 7(1)(c) of Regulation No 40/94.

12      The applicant claims, first, that the mark applied for is an invented word. Although the word ‘skin’ can have the meaning ascribed to it by the Board of Appeal, it has many other meanings as well which would include the skin of an aircraft. It would therefore be preferable to define it as an outer surface which is usually thin.

13      Second, the applicant submits that the Board of Appeal did not support with any evidence its finding that the relevant public may perceive the term ‘superskin’ as describing the intended purpose of the goods and services in question. The Board of Appeal merely stated that, by adding the laudatory term ‘super’ to the noun ‘skin’ in the same sign, the mark applied for informs consumers that the goods and services concerned help to make skin ‘look fantastic’.

14      Third, the applicant contends that it is not common in spoken English to combine the words ‘super’ and ‘skin’ in that order in the same expression. It would be more natural to combine those words in a different order, by saying, for example, ‘your skin is super’.

15      Fourth, the applicant considers that the combinations of the word ‘super’ with a noun, cited by the Board of Appeal, are examples which are more than 15 years old, and that the word ‘super’ itself is somewhat ‘out of vogue’ in the English language.

16      Fifth, the applicant observes that, in contrast to other terms which were already used in various sectors descriptively and which, for that reason, had to be kept available so that they could be freely used by competitors, the sign at issue is well known only in the context of the trade mark applied for.

17      Sixth, the applicant points out that it does not manufacture skin, artificial or otherwise. Therefore, the mark applied for cannot be declared directly descriptive of the goods and services concerned. In particular, it is impossible for the mark applied for to be taken to be descriptive in the context of dietetic foods, perfumes, nail and hair care preparations, deodorants, dentifrice, hair colouring preparations, hairspray, eyecare preparations, nail varnish, nail varnish remover, artificial nails, cotton wool, nutraceuticals, food for babies, hygienic care, cosmetic treatments for the hair and nutrition and dietetic consultancy. The Court must therefore, at the very least, annul the contested decision in respect of those goods and services.

18      Seventh, according to the applicant, the mark applied for is suggestive and ‘not arbitrary’. It is not a word which is found in dictionaries. The mark applied for is ‘subtle’ and ‘not obvious’, so that it requires imagination, thought or perception to reach a conclusion regarding the nature of the goods or services concerned. The mark applied for is also ‘removed’ in concept from the goods and services concerned.

19      OHIM disputes the applicant’s arguments. It contends, in essence, that the mark applied for is descriptive of the essential characteristics of all of the goods and services concerned for the purposes of Article 7(1)(c) of Regulation No 40/94. Those goods and services all relate to the human skin in one way or another.

 Findings of the Court

20      Under Article 7(1)(c) of Regulation No 40/94, ‘trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service’ are not to be registered. Furthermore, Article 7(2) of that regulation provides that ‘[p]aragraph 1 shall apply notwithstanding that the grounds of non-registrability obtain in only part of the Community’.

21      Article 7(1)(c) of Regulation No 40/94 precludes the signs or indications to which it refers from being reserved to one undertaking alone by virtue of their registration as trade marks. That provision thus pursues an aim which is in the public interest, namely that indications or signs which are descriptive of the characteristics of the goods or services in respect of which registration is sought may be freely used by all (Case C‑191/01 P OHIM v Wrigley [2003] ECR I‑12447, paragraph 31; judgment of 21 January 2009 in Case T‑399/06 giropay v OHIM (GIROPAY), not published in the ECR, paragraph 22; see, by analogy, Joined Cases C‑108/97 and C‑109/97 Windsurfing Chiemsee [1999] ECR I‑2779, paragraph 25).

22      Likewise, signs or indications referred to in Article 7(1)(c) of Regulation No 40/94 are considered incapable of performing the essential function of a trade mark, namely that of identifying the commercial origin of the goods or services, thus enabling the consumer who acquired the goods or services covered by the mark to repeat the experience, if it proves to be positive, or to avoid it, if it proves to be negative, on the occasion of a subsequent acquisition (judgment of 21 January 2009 in Case T‑307/07 Hansgrohe v OHIM (AIRSHOWER), not published in the ECR, paragraph 22).

23      It follows that, for a sign to be caught by the prohibition set out in that provision, there must be a relationship between the sign and the goods or services in question that is sufficiently direct and specific to enable the public concerned immediately to perceive, without further thought, a description of the category of goods and services in question or one of their characteristics (Case T‑19/04 Metso Paper Automation v OHIM (PAPERLAB) [2005] ECR II‑2383, paragraph 25, and judgment of 2 December 2008 in Case T‑67/07 Ford Motor v OHIM (FUN), not published in the ECR, paragraph 24).

24      However, if a mark consisting of a neologism or of a word produced by a combination of elements is to be regarded as descriptive for the purposes of Article 7(1)(c) of Regulation No 40/94, it is not sufficient that each of its components may be found to be descriptive. The neologism or the word itself must be found to be so (see, by analogy, Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraph 96; Case C‑265/00 Campina Melkunie [2004] ECR I‑1699, paragraph 37; and AIRSHOWER, paragraph 22 above, paragraph 35).

25      Moreover, it is settled case‑law that a mark consisting of a neologism or word composed of elements, each of which is descriptive of the characteristics of the goods or services in respect of which registration is sought, is itself descriptive of the characteristics of those goods or services for the purposes of Article 7(1)(c) of Regulation No 40/94, unless there is a perceptible difference between the neologism and the mere sum of its parts. That would be the case where, because of the unusual nature of the combination in relation to the goods or services, the neologism creates an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is composed, with the result that the neologism is more than the sum of its parts (see, by analogy, Koninklijke KPN Nederland, paragraph 24 above, paragraph 100; Campina Melkunie, paragraph 24 above, paragraph 41; and PAPERLAB, paragraph 23 above, paragraph 27). In that regard, the analysis of the term in question in the light of the appropriate lexical and grammatical rules is also relevant (see GIROPAY, paragraph 21 above, paragraph 35 and the case‑law cited).

26      It should also be borne in mind that a sign’s descriptiveness can be assessed only by reference to the goods or services concerned and to the way in which it is perceived by the target public (judgment of 23 October 2008 in Case T‑158/06 Adobe v OHIM (FLEX), not published in the ECR, paragraph 40, and AIRSHOWER, paragraph 22 above, paragraph 23).

27      In the present case, as the mark applied for comprises English words which are in everyday usage, the relevant public, with reference to which the absolute ground for refusal should be assessed, is made up of average English‑speaking consumers who are aware of the characteristics of the goods and services concerned, as the Board of Appeal rightly stated in paragraphs 11 and 13 of the contested decision, without that being disputed by the applicant.

28      It is therefore necessary to examine whether, in accordance with the case‑law cited in paragraphs 23 to 26 above, there is, from the point of view of the relevant public so defined, a sufficiently direct and specific relationship between the sign at issue and the goods and services concerned.

29      As regards the elements which make up the mark applied for, it is not in dispute that the sign at issue is composed of the words ‘super’ and ‘skin’.

30      In relation to the word ‘skin’ in the sign at issue, the Board of Appeal found, without being challenged on that point by the applicant, that that word refers, inter alia, to human skin, that is to say, the external tissue layer of the human body.

31      To the extent that the applicant claims that the word has many other meanings as well, including the skin of an aircraft, it must be borne in mind that the case-law shows that the fact that a word may have several different meanings is irrelevant in that context. Thus, in order for OHIM to refuse to register a trade mark on the basis of Article 7(1)(c) of Regulation No 40/94, it is sufficient that, from the point of view of the relevant public, at least one of the word’s possible meanings designates a characteristic of the goods or services concerned (see OHIM v Wrigley, paragraph 21 above, paragraph 32; FLEX, paragraph 26 above, paragraph 49 and the case‑law cited).

32      The Court therefore finds that the word ‘skin’ designates human skin as regards the intended purpose of the goods and services concerned.

33      In relation to the word ‘super’, the Board of Appeal found, without being challenged on that point by the applicant, that it means of high grade or quality. It must therefore be held that that laudatory word has a descriptive character in respect of the goods and services concerned. Derived from Latin, but also in common use in most languages of the European Union, it has descriptive connotations in respect of the goods and services concerned, which are obvious to the average consumer (see, to that effect, judgment of 20 January 2009 in Case T‑424/07 Pioneer Hi‑Bred International v OHIM (OPTIMUM), not published in the ECR, paragraph 24).

34      As regards the applicant’s argument that the word ‘super’ is somewhat ‘out of vogue’, even if that were proven to be the case, the Board of Appeal was entitled to find, in paragraph 13 of the contested decision, without being challenged on that point by the applicant, that it is nevertheless true that that word is still used and is understood by any average English‑speaking consumer. In any event, it should be recalled that, in order for OHIM to refuse to register a trade mark on the basis of Article 7(1)(c) of Regulation No 40/94, it is not necessary that the signs and indications composing the mark applied for that are referred to in that article actually be in use at the time of the application for registration in a way that is descriptive of goods or services such as those in relation to which the application is filed, or of the characteristics of those goods or services. It is sufficient, as the wording of that provision itself indicates, that such signs and indications could be used for such purposes (OHIM v Wrigley, paragraph 21 above, paragraph 32).

35      It must also be held that the combination of the words ‘super’ and ‘skin’ in the sign at issue will not be perceived as unusual by the relevant public, contrary to what the applicant claims. The applicant did not dispute the Board of Appeal’s assertion, in paragraph 12 of the contested decision, that there are examples, in an English dictionary, of the creation of that kind of expression, for instance, ‘super cautious’, ‘super civilized’ or ‘super sensitive’. The Board of Appeal also referred to the English words ‘superpower’ and ‘superstar’ in which the prefix ‘super’ is followed by a noun (see paragraph 13 of the contested decision).

36      The applicant’s argument that it would be more natural to combine those words in a different order, by saying, for example, ‘your skin is super’ must be rejected in that regard. That claim, which is in no way supported by evidence, does not cast doubt on the reasoning relied on in the contested decision by the Board of Appeal, which made reference to an English dictionary. The fact that that dictionary dates from 1993 does not alter that assessment, given that a significant part of the relevant public is old enough to regard that combination as being reasonably up-to-date. In addition, it should be borne in mind that it is irrelevant whether or not there are other signs or indications that are more usual than those of which the mark applied for consists for designating the same characteristics of the goods and services concerned. Article 7(1)(c) of Regulation No 40/94 does not require that signs or indications which may serve to designate characteristics of the goods or services concerned should be the only way of designating such characteristics (see, by analogy, Koninklijke KPN Nederland, paragraph 24 above, paragraph 57, and Campina Melkunie, paragraph 24 above, paragraph 42).

37      In the light of the foregoing, the mere fact of having combined the English words ‘super’ and ‘skin’ in the sign at issue must be held not to create an impression which is sufficiently far removed from that produced by the mere combination of meanings lent by the elements of which it is comprised, with the result that the sign is more than the sum of its parts. The sign at issue will immediately be perceived by the relevant public, without further thought, as designating goods and services which have as their intended purpose high‑quality skin, that is to say, beautiful and/or healthy skin.

38      It is therefore necessary to examine whether all the goods and services concerned have as their intended purpose high‑quality skin in order to establish a sufficiently direct and specific relationship, within the meaning of the case‑law (see paragraph 23 above), between the sign at issue and those goods and services. In paragraph 14 of the contested decision, the Board of Appeal pointed out that the goods in Class 3 are all within the realm of cosmetics and toiletry articles, and that those in Class 5 are within that of special nutrition. As regards the services in Class 44, according to the Board of Appeal, they have a link with hygienic and beauty or healthcare for human beings. It adds that, in such a context, the mark applied for cannot but be understood reasonably as pointing to the fact that those goods and services are aimed at giving a beautiful or clean appearance, or a healthy state, to a person’s skin. According to the Board of Appeal, such an effect can be attained either by directly applying the products to the human skin or other outer parts of the human body, or through the ingestion of foods and nutritional elements containing ingredients with effects beneficial to the skin.

39      The applicant challenges the existence of such a sufficiently direct and specific relationship between the sign at issue and the goods and services concerned, in particular in the context of dietetic foods, perfumes, nail and hair care preparations, deodorants, dentifrice, hair colouring preparations, hairspray, eyecare preparations, nail varnish, nail varnish remover, artificial nails, cotton wool, nutraceuticals, food for babies, hygienic care, cosmetic treatments for the hair, and nutrition and dietetic consultancy.

40      Regarding the goods in Class 3 (see paragraph 3 above), it must be held that, from the point of view of the relevant public, there is a sufficiently direct and specific relationship between, on the one hand, the sign at issue and, on the other, all the goods intended to improve or preserve the appearance or health of the skin. That finding applies, inter alia, to cotton wool, which can be used for skin care.

41      However, the Court finds that the Board of Appeal did not demonstrate, through its explanations, that the sign at issue has such a sufficiently direct and specific relationship with perfumes, nail and hair care preparations, antiperspirants, deodorants, dentifrice, hair colouring preparations, hairspray, eyecare preparations, nail varnish, nail varnish remover and artificial nails. It should be noted that, from the point of view of the relevant public, those cosmetics and toiletry items are not intended to improve or preserve the appearance or the health of the skin. The fact that they may, after normal use, be harmless to the skin is not sufficient in the present case to show that the sign at issue has a sufficiently direct and specific relationship with those goods. Such an effect is secondary and can be inherent in all substances which come into contact with the skin.

42      Regarding the goods in Class 5 (see paragraph 3 above), and in particular those used in the special nutrition sector, they may be intended to produce an effect, through their ingredients, on the skin’s appearance. It follows that the sign at issue has a sufficiently direct and specific relationship with those goods. In that regard, it should be recalled that it is irrelevant whether the characteristics of the goods and services which may be the subject of the description are commercially essential or merely ancillary (Koninklijke KPN Nederland, paragraph 24 above, paragraph 102).

43      Regarding the services in Class 44 (see paragraph 3 above), the same distinction must be made as for the goods in Class 3. The argument related to the fact that those goods are not intended to improve or preserve the appearance or health of the skin applies equally to some of the services concerned, namely those relating to hygienic care and cosmetic treatments for the hair, as those services cannot have high quality skin as their intended purpose. None the less, it can reasonably be considered that, from the point of view of the relevant public, there is a sufficiently direct and specific relationship between the sign at issue and the other services concerned.

44      Accordingly, as regards perfumes, nail and hair care preparations, deodorants, dentifrice, hair colouring preparations, hairspray, eyecare preparations, nail varnish, nail varnish remover, artificial nails, hygienic care and cosmetic treatments for the hair, the descriptiveness of the mark applied for is not sufficiently pronounced for the relevant public to perceive immediately, without further thought, a description of the category of goods and services concerned or one of their characteristics. However, as regards the other goods and services conceived, the Court finds that the mark applied for is descriptive for the purposes of Article 7(1)(c) of Regulation No 40/94.

45      That finding is not called into question by the other arguments submitted by the applicant.

46      As regards, first, the applicant’s assertion that the Board of Appeal had no evidence in support of its finding that the mark applied for is descriptive for the purposes of Article 7(1)(c) of Regulation No 40/94, suffice it to state that the registrability of a sign as a Community trade mark must be assessed only on the basis of the relevant legislation of the European Union as interpreted by the Courts of the Union. Therefore, it is sufficient that the Board of Appeal applied the descriptiveness test, as interpreted by the case-law, in order to reach its decision and it was not obliged to justify its action by the production of evidence (Case T‑289/02 Telepharmacy Solutions v OHIM (TELEPHARMACY SOLUTIONS) [2004] ECR II‑2851, paragraph 54). Moreover, since the applicant disputes the descriptive character of the mark applied for, despite the analysis of the Board of Appeal based on clear and convincing reasoning, it is for the applicant to provide specific and substantiated information to show that the mark applied for does not have descriptive character, since it is better placed to do so, given its thorough knowledge of the market (see, by analogy, OPTIMUM, paragraph 33 above, paragraph 46 and the case‑law cited).

47      As regards, second, the applicant’s argument that the sign at issue is well known only in the context of the mark applied for, irrespective of the fact that that assertion has not been supported by any evidence, it should be borne in mind that Article 7(1)(c) of Regulation 40/94 pursues an aim which is in the public interest, namely that indications or signs which are descriptive of the characteristic of the goods or services concerned may be freely used by all (see paragraph 21 above). Therefore, that provision applies also where it is reasonable to assume that the mark applied for constitutes, in the mind of the relevant class of persons, a description of the characteristics of the goods and services concerned in the future (see, by analogy, Koninklijke KPN Nederland, paragraph 24 above, paragraph 56). That argument must thus be rejected.

48      As regards, lastly, the applicant’s argument that the mark applied for is suggestive, ‘not arbitrary’, ‘subtle’ and ‘not obvious’ and requires imagination, thought or perception to reach a conclusion regarding the nature of the goods or services concerned, it cannot be accepted. It is clear from the analysis carried out that the sign at issue describes, clearly and unequivocally, the characteristics of the goods and services concerned, namely that they are intended to improve or preserve the appearance or the health of the skin. The fact that the term ‘superskin’ does not appear in English‑language dictionaries is not relevant in that regard, given that it is not necessary that the signs and indications composing the mark that are referred to in Article 7(1)(c) of Regulation No 40/94 actually be in use at the time of the application for registration in a way that is descriptive of the goods and services concerned (see, by analogy, OHIM v Wrigley, paragraph 21 above, paragraph 32).

49      The Board of Appeal also based the refusal to register on the lack of distinctive character of the mark applied for pursuant to Article 7(1)(b) of Regulation No 40/94. Given that it relied exclusively on the descriptiveness of the mark applied for (see paragraph 16 of the contested decision) to justify applying that provision, it also misapplied Article 7(1)(b) of Regulation No 40/94.

50      Therefore, the Board of Appeal concluded, wrongly, in the contested decision that Article 7(1)(b) and (c) of Regulation No 40/94 precluded registration of the mark applied for in respect of perfumes, nail and hair care preparations, antiperspirants, deodorants, dentifrice, hair colouring preparations, hair spray, eyecare preparations, nail varnish, nail varnish remover, artificial nails, hygienic care and cosmetic treatments for the hair.

51      In the light of the foregoing, the contested decision must be annulled in part and the action must be dismissed as to the remainder.

 Costs

52      Under Article 87(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared. In the present case, as the applicant’s action has been upheld only in respect of some of the goods and services concerned, the applicant must bear its own costs and pay half of OHIM’s costs, and OHIM must bear the other half of its costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 September 2008 (Case R 1656/2007‑4), in respect of perfumes, nail and hair care preparations, antiperspirants, deodorants, dentifrice, hair colouring preparations, hair spray, eyecare preparations, nail varnish, nail varnish remover and artificial nails, in Class 3, and hygienic care and cosmetic treatments for the hair, in Class 44;

2.      Dismisses the action as to the remainder;

3.      Orders Liz Earle Beauty Co. Ltd to bear its own costs and to pay half of OHIM’s costs, and OHIM to bear the other half of its costs.

Martins Ribeiro

Papasavvas

Dittrich

Delivered in open court in Luxembourg on 9 December 2009.

[Signatures]