C-383/99

5. It is even more clearly desirable that uniformity should prevail within any com­ mon or single market such as the Commu­ nity. Following harmonisation of the laws 3. The term in respect of which registration is being requested is 'BABY-DRY', used for babies' nappies or (in the American 2 - Of 20 March 1883, as revised at Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on parlance used by the manufacturer and in 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958, and at Stockholm on 14 July 1967 many of the documents in this case) (United Nations Treaty Series No 11851, vol. 828, pp. 305 'diapers'. to 388). 3 - Set out in Annex 1 C to the Agreement establishing the World Trade Organisation ('the WTO Agreement'), approved on behalf of the Community, as regards matters within its competence, by Council Decision 94/800/EC of 1 - Original language: English. 22 December 1994, OJ 1994 L 336, p. 1.

I - 6254

PROCfER & GA11BLE v OHL\!

of the Member States by the Trade lvlarks 7. Under Article 4 of the Tracie Mark Directive in 1989, 4 the further and more Regulation, a Community trade mark far-reaching step of establishing a Commu­ 'may consist of any signs capable of being nity trade mark, in addition to the existing represented graphically, particularly words, national trade marks, was taken by Reg­ including personal names, designs, letters, ulation No 40/94 ('the Trade Mark Regu­ numerals, the shape of goods or of their lation'). 5 packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings'.

(c) trade marks which consist exclu­ 4 - First Council D1rcct1ve 89/104/EEC of 21 Dt:ccmhcr 1988 sively of signs or indications which ro approximate the l..1ws of the !vlcmher States relating to trade marks, OJ 1989 L 40, p. I. may serve, in trade, to designate S - Council Rcgulat1on (EC! !'-;o 40/94 of 20 December 199.l the kind, quality, quantity, inten­ on the Communny trade m,uk, OJ 1994 l. 11, p. I. 6 - Ile.id 111 the hghr of the 13th rccual m the preamble to the ded purpose, value, geographical Trade Mark Regul..1t1011 .md of Article ](c) of Courn.:11 origin or the time of production of Dcc1s1on 88/591/ECSC, EEC, Eur.Hom of 24 October 1988 estahh�hmg ,1 Court of Fir�t lnst,rncc of the European the goods or of rendering of the Commumtie�. OJ 1988 L .H9, p. 1, .1s amended hy Council Dcmmn 9.l/.JSO/Eur.itom, ECSC, EEC of 8 June 199.l, service, or other characteristics of OJ 199.l L 144, p. 21. the goods or service;

I - 6255

OPINION OF MR JACOBS — CASE C-383/99 P

(d) trade marks which consist exclu- grounds as is registration as a national sively of signs or indications which trade mark within the Member States. have become customary in the current language or in the bona fide and established practices of the trade;

10. However, since the distinctive or descriptive nature of a term may vary from one language to another, it does not follow that a mark which cannot be registered in certain Member States, and thus under Article 7(2) of the Trade Mark Regulation cannot be registered as a Community trade mark, may not be registered in other Member States. 2. Paragraph 1 shall apply notwithstand- ing that the grounds of non-registrabil- ity obtain in only part of the Commu- nity.

(b) indications concerning the kind, qual- 12. On the other hand, the Paris Conven- ity, quantity, intended purpose, value, tion does not contain a definition of a trade geographical origin, the time of pro- mark such as that given in Article 4 of the duction of the goods or of rendering of Trade Mark Regulation. Provisions having the service, or other characteristics of the same general effect are, however, com- the goods or service; mon in trade mark laws throughout the world. In particular, a similar definition is found in Article 15(1) of the TRIPs Agree- ment: 9 'Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark....'

provided he uses them in accordance with honest practices in industrial or commercial 13. Under Article 9(1)(a) and (b) of the matters.' Trade Mark Regulation, essentially, the proprietor of a Community trade mark may prevent all third parties from using in the course of trade an identical or confus- ingly similar sign in relation to identical or 14. Essentially identical provisions are to be found (for national trade marks) in '9— Cateti above in paragraph 4 and note 3. Articles 5(1) and 6(l)(b) of the Trade

I - 6257

OPINION OF MR JACOBS - CASE C-383/99 P

18. Procter & Gamble challenged that refusal before the First Board of Appeal, arguing that the combination 'BABY­ The application for registration DRY' was, though allusive, none the less sufficiently distinctive to qualify for trade mark protection, had been registered in Denmark, Finland and France and was at least as distinctive as certain other trade marks already published by the Office. The 16. The Procter & Gamble Company of company further offered to submit evidence Cincinnati, Ohio ('Procter & Gamble'), of acquired distinctiveness resulting from applied to the Office in 1996 for registra­ sales and heavy advertising throughout tion of the term 'BABY-DRY' as a Europe since 1993, with a view to invoking Community trade mark for 'disposable the derogation contained in Article 7(3) of diapers made out of paper or cellulose' the Trade Mark Regulation from the appli­ and 'diapers made out of textile'. cation of Article 7(1)(b) to (d). I - 6258

PROCTER & GA.\!BLE v OHi'.\!

22. The Board rejected the arguments that 24. Procter & Gamble appealed against comparable marks had already been regis- that decision in an action brought before

I - 6259

OPINION OF MR JACOBS - CASE C-383/99 P

the Court of First Instance on 6 October At the very least, remit the case to the 1998. It claimed that the Court should: Board of Appeal for it to rule on that alternative issue'.

'Principally ("en ordre principal"), 25. Although the principal head of claim was simply for annulment of the Board of Appeal's decision, it is clear from the case­ file that it was sought on the ground of infringement of Article 7(1)(b) and (c) of the Trade Mark Regulation and indeed the Annul the contested decision of the Board Court of First Instance reformulated it both of Appeal of 31 July 1998, in the Report for the Hearing and in its judgment of 8 July 1999 10 as a request to

Order the Office to publish Community trade mark application No 000200006 in '- annul the contested decision in so far as accordance with Article 40 of the Commu­ it finds that the mark does not satisfy nity Trade Mark Regulation; the conditions laid down in Arti­ cle 7(1)(b) and (c) of Regulation No 40/94'.

the absolute grounds for refusal to apply Court of First Instance on that point is not for the sign to be ineligible for registration. in issue in this appeal, and I express no It considered in particular that it was the view on it. intention of the legislature that signs or indications of the kind described in that subparagraph 'should, by their very nature, be regarded as incapable of distinguishing the goods of one undertaking from those of another' . The Board of Appeal had referred 29. On the remaining claims, 13 the Court to the dictionary definition of diapers, had declined to hear evidence itself on the noted that the term 'BABY-DRY', read as a whole, informed consumers of the inten­ acquired distinctiveness of the mark on ded purpose of such goods but exhibited no the ground that the merits of that matter additional feature capable of distinguishing had not been considered by the Office, and Procter & Gamble's goods from those of dismissed as inadmissible the claim for an other undertakings and had thus correctly order requiring the Office to publish the concluded that in accordance with Arti­ trade mark application, pointing out that the Office was required to take the neces­ cle 7(1)(c) the term was not capable of constituting a Community trade mark. sary steps to comply with the Court's judgment.

some and fails on other heads, 15 ordered 34. Procter & Gamble points out that the parties to bear their own costs. under Article 49 of the Statute of the Court of Justice ('Statute') an appeal may be brought against, inter alia, final decisions of the Court of First Instance by any party which has been unsuccessful, in whole or in part, in its submissions. It was partly unsuccessful in its submissions. Moreover, it has an interest in bringing the appeal because the Office is bound not only by the The present appeal operative part but also by the reasoning of the judgment under appeal; in accordance with that reasoning the Office is required to re-examine the application only in the light of Article 7(3) of the Trade Mark Regula- 32. In its appeal lodged on 8 October tion but not in the light of Article 7(1)(b) 1999, Procter & Gamble asks the Court and (c). of Justice to set aside the judgment under appeal 'inasmuch as the Court of First Instance held that the First Board of Appeal... had not infringed Article 7(1)(c) of Regulation (EC) No 40/94 by adopting its decision of 31 July 1998...'. The Office 35. The Office accepts that Procter & contends that the appeal should be dis- Gamble has an interest in bringing the missed and both parties ask for costs. appeal and merely doubts whether there can be said to be an 'infringement of Community law by the Court of First Instance' 16 in this case. It defers to the Court's judgment as to whether there is any question of admissibility which the Court should raise of its own motion in accor- dance with Article 92(2) of its Rules of Procedure. Admissibility

which that operative part must be imple- German, Italian and Spanish versions of the mented. There might be thought to be Statute. If the term is taken in the restricted dangers in allowing an appeal to be sense of forms of order sought, the right of brought whenever a party was merely appeal seems tightly circumscribed, but a dissatisfied by part of the reasoning on broader interpretation is possible. English which the Court of First Instance had based is not the only language that uses different its decision to grant the remedy sought. terminology — the Dutch for example has 'iedere partij die geheel of gedeeltelijk in het ongelijk is gesteld', which makes no specific reference to 'conclusies', and at least the Danish, Portuguese and Finnish also use different expressions. In that light, 37. However, I would not support that I consider that the provision should be objection. interpreted as referring in general terms to a failure to obtain what was asked for rather than strictly to a failure to have a particular argument accepted or a particu- lar form of order granted.

I - 6263

OPINION OF MR JACOBS - CASE C-383/99 P

it thus has an interest in pursuing its 43. Essentially, it argues that instead of original claim. considering that trade marks identified in that provision are regarded as inherently incapable of distinguishing goods of one undertaking from those of another for the purposes of Article 4 unless they have acquired distinctiveness through use, the Court should have understood that the 41. Specifically, the judgment under provision merely cites examples of the ways appeal, although it formally grants the in which marks may be incapable of form of order sought, does so in an distinguishing goods but that each mark explicitly limited manner which fails to must be assessed individually in order to grant Procter & Gamble full redress. The determine whether it is in fact so incapable. right of appeal would be unjustifiably In fact there is only one substantive curtailed if there were no possibility of requirement - that set out in Article 4, challenging such a limitation. In the present which requires that a trade mark must be situation, if the Office cannot re-examine 'capable of distinguishing.. .'. the case in the light of Article 7(1)(c) and no appeal is possible then what seems to be the essential issue in the case, which was duly raised before the Court of First Instance, is excluded from further consid­ eration, resulting in possible injustice to Procter & Gamble. 44. In other words, it is not enough to note that the words 'baby' and 'dry', the sole elements of the mark 'BABY-DRY', may serve to designate the intended purpose of diapers but the mark taken as a whole must be examined to determine whether it is capable or incapable of fulfilling the Substance required distinguishing function vis-a-vis consumers. In fact, 'BABY-DRY' will not be understood by the buying public as a synonym for diapers or as a mere descrip­ tion of their purpose but as a guarantee that they are produced by a particular under­ taking. Arguments

including some Member States, generally in when viewed in the light of the goods in the context of a 'monopolistic' approach to question. Procter & Gamble cites a number the trade mark right - the greater the of such judgments, including some more right of the trade mark owner to prohibit recent rulings of the German Bundes­ any use whatever by a third party, the gerichtshof. greater the tendency to exclude from the category of registrable marks any element which it would be wrong to remove from the public domain. However, that is not appropriate in the context of the Trade Mark Regulation, Article 12 of which precludes owners from prohibiting the use of indications of the kinds listed in Arti­ cle 7(1)(c). 48. In the modern approach, there is thus only one criterion - a trade mark must be capable of being perceived by the public as indicating that the goods are those of a given undertaking. The previous concern in UK and German legislation, that descrip­ 46. In that connection, Procter & Gamble tive terms should not be monopolised, is reviews the history of Article 7(1)(b) and amply catered for in Article 12 of the Trade (c) and some of the relevant case-law. Mark Regulation - just as the owner of the 'Vittel' trade mark cannot prohibit another producer from stating in good faith that its water is bottled at Vittel, nor could Procter & Gamble prevent a rival from claiming that its diapers 'keep y our 47. It points out that the terms used in the baby dry'. Put another way, simply because provisions date back to the Paris Conven­ a sign is descriptive it does not follow that tion, the different context of which - that it cannot be distinctive of the goods of a of according protection to marks already particular undertaking. registered in another country - explains, it considers, the otherwise contradictory expression 'trade marks which are devoid of any distinctive character' in Arti­ cle 7(1)(b). Despite attempts to achieve a consistent approach in the context of the Paris Convention negotiations (the present text dates from the Washington revision of 1911), two 'camps' remained: those coun­ tries, such as the United Kingdom and 49. The Office considers that the appeal Germany, which traditionally excluded any raises two questions: (i) Is the descriptive descriptive elements as a matter of principle character referred to in Article 7(1)(c) of and those, more 'modern', such as France the Trade Mark Regulation a sufficient and the Benelux countries, which examined ground for refusing protection of a sign? (ii) each case on its merits and only excluded What descriptive signs may or must be signs which were exclusively descriptive refused on the basis of that provision?

50. The first question, the Office considers, 53. The Office agrees with Procter & should be answered in the affirmative. Gamble that Article 7 of the Trade Mark Regulation should not be read as prohibit­ ing the registration of terms which must remain in the public domain, a concern which is dealt with in Article 12. The rationale of Article 7(l)(c) is rather to ensure that only distinctive, as opposed to descriptive or generic, trade marks may be registered and it proceeds on the basis that 51. The provisions of Article 6 quinquies B terms which are solely descriptive are of the Paris Convention were intended to incapable of having the distinctive charac­ limit the extent to which member countries ter which is an essential feature of a trade could refuse protection of trade marks mark {unless they have acquired distinc­ already registered elsewhere; however, they tiveness through use). The criteria set out in have been incorporated into the substantive Article 7(1)(c) provide sufficient indepen­ law of many member countries and have dent grounds to refuse registration, without thus become conditions applicable to all implying that examination of the basic trade marks in that context. Under the criterion in Article 4 is short-circuited, TRIPs Agreement, which is binding on the since the result is the same. Community, members must comply with Articles 1 to 12 and 19 of the Paris Convention, although those provisions are not directly applicable in the Community. 54. As regards the second question, the Office considers that the Court of First Instance interpreted and applied Arti­ cle 7{1)(c) correctly in the judgment under appeal - viewed as a whole in relation to the type of product to which it relates, 'BABY-DRY' contains no element which is 52. In the Trade Mark Regulation, those not descriptive and is immediately and provisions have not simply been copied clearly informative, for the consumer, of verbatim because Article 7 relates to the the purpose of the product. registration of Community trade marks and not to the protection of marks registered elsewhere. None the less, because of the Community's obligation under the TRIPs Agreement to respect the relevant articles of the Paris Convention, there is a close correspondence both in the wording itself Scope of the appeal and in the way in which the Office interprets that wording. The grounds set out in Article 7(1)(b) to (d) of the Trade Mark Regulation correspond to those in Article 6 quinquies B(2) of the Convention 55. Procter & Gamble seeks the annulment and are similarly alternatives. of the judgment of the Court of First

58. In paragraphs 20 to 23, the Court of First Instance examined Articles 4 and 7( l )(c) of the Tracie Mark Regulation and concluded that the legislature had intcnclccl The relatio11shifJ between Article 4 and that signs of the kind referred to in Article 7(1)(c) Article 7( l )(c) (namely those which may serve in trade to designate characteristics of the goods in question, including their intended purpose) should, by their very 61. Unravelling the skein formed by Arti­ nature, be regarded as incapable of clistin- cles 4 and 7( l )(a) to (cl) of the Trade Mark

I - 6267

OPINION OF MR JACOBS — CASE C-383/99 P

64. Further, less readily understandable, 66. It is possible to become seriously tautology seems to arise with Arti- entangled in such considerations. In parti- cle 7(1)(b), which precludes registration of cular, the relationship between a sign which 'trade marks which are devoid of any is 'capable of distinguishing' and a mark distinctive character'. What is the differ- which is 'devoid of any distinctive charac- ence between being 'incapable of distin- ter' has given rise to much discussion in the guishing' two sets of goods and being 'devoid of any distinctive character'? To answer that it is a matter of potentiality 17 — Mr Justice Jacob in Philips v Remington [1998] RPC 283 at p. 289; the remark concerned in fact the terms of and actuality may do no more than displace Sections 1(1) and 3(1)(b) of the Trade Marks Act 1994, the United Kingdom legislation implementing the equivalent the question by one step. From another provisions of the Trade Marks Directive.

I - 6268

PROCTER & GAMBLE v OHIM

United Kingdom, and has prompted a Paris Convention 19 but also overlap to recent reference to this Court. 18 varying degrees both with each other and with Articles 4 and 7(1)(a).

I - 6269

OPINION OF MR JACOBS - CASE C-383/99 P

71. As the Court of First Instance rightly misleading in the present context. 23 Fur­ noted, 22 it is sufficient for one of the thermore, in my view the Court of First absolute grounds for refusal to apply for a Instance went too far in paragraph 23 of sign to be ineligible for registration as a the judgment under appeal when it held trade mark. Moreover, I cannot envisage that it was the intention of the legislature any circumstances in which, in practice, it that signs of the kind described in Arti­ might be important to determine whether cle 7(1)(c) 'should, by their very nature, be more than one absolute ground might regarded as incapable of distinguishing the apply. In theory, since the proviso concern­ goods of one undertaking from those of ing acquired distinctiveness in Article 7(3) another'. relates only to Article 7(1)(b) to (d) and not to Article 7(1)(a), it might be thought necessary to differentiate between, say, signs which are incapable of distinguishing and marks which are devoid of any dis­ tinctive character or composed entirely of descriptive elements. In practice, however, if acquired distinctiveness can be estab­ lished then there must be an underlying capacity to distinguish; if not, the question is immaterial.

74. However, although I believe the Court of First Instance to have gone beyond what was necessary in that regard, it does not necessarily follow that it was mistaken in its subsequent conclusion that the Board of 72. In other words, for the purposes of the Appeal was right to take the view that present case, Article 7(l)(c) falls to be registration of the term 'BABY-DRY' was interpreted independently of Article 4. precluded by the terms of Article 7(l)(c). The precise import of the provision must first be examined and, indeed, the nature of its relationship to Article 4 or to the other absolute grounds for refusal may prove not to be decisive.

The scope of Article 7(1 )(c) One concern of the authors of the Paris Convention may have been to allow certain countries, whose laws proceeded on the basis that a trade mark created a monopoly of use and that certain common terms must — In general be excluded from any such monopoly, to refuse to protect trade marks registered elsewhere which consisted of such terms. However, with respect to indications con- cerning characteristics of the goods or services, that concern is dealt with in 75. One aspect of this question is whether Article 12(b) of the Trade Mark Regula- the exclusion of signs or indications which tion, which limits the effects of a Commu- may designate characteristics of goods or nity trade mark by ensuring that use of such services should be read as intended to indications — for descriptive or informa- prevent traders from 'withdrawing from tive purposes rather than as brand identi- circulation' terms which properly belong in fications — cannot be prohibited by a the public domain. In paragraph 15 of its trade mark proprietor. That goes far to decision 24 the Board of Appeal took the meet the concern expressed long ago by an view that the exclusion should be read in English judge: 'Wealthy traders are habi- that way, but that approach is hotly tually eager to enclose part of the great contested by Procter & Gamble. However, common of the English language and to it should be noted that in the judgment exclude the general public of the present under appeal the Court of First Instance day and of the future from access to the took no position on the issue. enclosure'. 25

having a different import from that which Article 64(2) of the Regulation and Arti- they have in, say, the Paris Convention, that cle 15(2) of the Directive as being capable is because they appear in a different of registration as collective marks and, in context. relation to agricultural products and food- stuffs (with regard to which they are particularly significant), they are closely regulated by other Community legisla- tion. 27 In particular, however, the registra- tion of a geographical name as a trade mark would 'occupy the ground' much more completely than would that of a mark comprising descriptive elements. It may 79. I realise that the view I am putting also be noted that the Court held in the forward here may appear to conflict with Windsurfing judgment 28 that Community some passages in the Windsurfing Chiem- law did not embrace the German concept see judgment. 26 There, the Court held that of Freihaltebedürfnis ('real, current or Article 3(1 )(c) of the Trade Marks Direc- serious need to keep an indication free') in tive (equivalent to Article 7(1 )(c) of the that regard. Regulation) 'pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the cate- gories of goods or services in respect of which registration is applied for may be freely used by all' and that Article 6(1)(b) (which corresponds to Article 12(b) of the Regulation) does not have a decisive bear- ing on that interpretation.

- In relation to 'BABY-DRY' since clearly the question whether registra­ tion of a mark is prohibited under Arti­ cle 7( 1 )(c) must be assessed in relation to the relevant category of goods, as was rightly stated by the Court of First Instance in the judgment under appeal. 29 However, 82. In the present case, the Board of Appeal despite the fact that, as the Board of Appeal found that '[t]he combination of two pointed out, one of the principal functions ordinary words ("baby" and "dry"), with of diapers is to 'keep babies dry' (in one no additional element that could be regar­ sense of that expression), the term 'baby ­ ded as fanciful or imaginative, immediately dry' is not to my knowledge used in informs consumers that the product is ordinary language to refer to such items suitable for performing its basic function or their intended purpose, nor has it been of keeping babies dry'. The Court of First suggested that it is. Instance agreed and considered that 'the term "BABY-DRY" does not seem to exhibit any additional [distinguishing] fea­ ture'.

83. There can, admittedly, be little doubt 86. Nevertheless, the first aspect too may that the words 'baby' and 'dry' may be used be not entirely without relevance. If the in trade in indications which designate the term 'BABY-DRY' is capable of suggest­ing intended purpose of diapers and that the products as diverse as, say, talcum term 'BABY-DRY' consists of no other powder, rain hoods for prams, compact words. tumble-dryers or drinks presented in small bottles, then that might seem to dilute its power to designate with any precision the intended purpose of diapers.

89. That approach is in my view too narrow, at least in the way it was applied in the present case.

93. The Office's examination guidelines, for example, state that a trade mark must 'do more than describe the goods'. The 90. In particular, it fails to take account of Second Board of Appeal, when considering the extremely elliptical nature of the indi­ the mark 'Oilgear' in relation to hydraulic cation, its unusual structure or its resistance pumps, motors and machine tools, para­ to any intuitive grammatical analysis which phrased Article 7(l)(c) as 'prescribing that would make the meaning immediately marks, in order to be accepted, should not clear. Those are all, I consider, elements be exclusively or purely descriptive'. 30 additional to the words 'baby' and 'dry' Upholding an appeal against a refusal to which should enter into the assessment. register 'NETMEETING' in relation to computer programs for providing real­ time, muitimedia, multiparty communica­ tions over computer networks, the Third Board of Appeal found that the mark contained at least an element of inventive­ ness, noting that the words are not nor­ 91. It also fails to take account of the fact mally used together, that their combination that, conversely, any indication used in does not suggest a direct correlation with trade to designate the intended purpose of the specific goods of interest to the appli­ diapers must, in order to be intelligible for cant and that the mark does not exclusively that purpose, contain more than the words designate the intended purpose or other 'baby' and 'dry' simply juxtaposed as in the characteristics of the goods. 31 brand name in question. Furthermore, it fails to give any consideration to the fact that 'BABY-DRY' is by any standard an 30 - Decision of 22 September 1998 in Case R 36/199S-2, The invented term and does not as such form 31 - Decision Oilgear Company. of 27 November 1998 in Case R 26/1998-3, part of the English language, thus rendering Microsoft Corporation.

95. In a very recent judgment, 34 the Court of First Instance annulled a decision of the First Board of Appeal dismissing an appeal against a refusal to register the mark 'DOUBLEMINT' in respect of a number of types of goods but chiefly chewing gum. It based its ruling essentially on the con­ sideration that the element 'double' was 97. Thus I consider that, by failing to give ambiguous in the context and that 'DOU­ due consideration to those factors in the BLEMINT' 'does not enable the public context of Article 7( 1 )(c), the Board of concerned immediately and without further Appeal erred in law in its assessment and the Court of First Instance erred in law in upholding the Board's decision in that 32-Case C-251/95 S1\BU. v 1'11111.i 119971 ECR 1-6191, at paragraph 23 of the judgment. regard. 33 - Dccismn of 26 Fchruarv 1999 m Case R 71/1998-3 AI1cro­ Fr,m1e Teclmolog1cs, in' relauon to rhL· term 'PORTFOLIO' for various r ·pcs of computer and printed material designed to aliow busmcs<;cs to select and plan projects 35 - Paragraph .lO of the 1udgmrnr. based on cxistmg and proJCl'.tcd comnutments and ]6 - It would, as Procter & Gamble has pomted out, not be rcsourccsj par.1graph 10 of the dc,i�1on. It should he po�sthle to prevenr .1 competitor from stating that l11s pointed oat that those staccment� were m,llle 111 the context produi.:-ts 'keep your bahy dry' (or even perhaps 'keep rour of the view, with whid1 I dis,tgrce, that the purpose of hahv even drier'). \v'hat would be possible would he to Arudc 7( I )(c) ts to keep dcscnptivc terms .wa11.lhlc for prof11b1t the compemor from usmg the two words 'hahy general use. dry' to 1dcnt1fy Im, products or in such a way a� to le,lll to a .14 - Oi 31 January 2001 111 Case T-193/99 Wrigley v OH/Al ltkdihood of confos1on between brands on the part of the ECR 11-417. public

104. In view of the multiplicity of the stages in the appeal procedure and the 100. Procter & Gamble appealed to the Court of First Instance on the basis that the Board of Appeal had erred in its interpre- 37 — Indeed, there do not seem to be any cases to date in which the Court of First Instance has altered the decision of a tation of both Article 7(1)(b) and Arti- Board of Appeal.

I - 6276

PROCTER & GAMBLE v OHIM

already considerable length of time taken, perhaps an unnecessary and procedurally the shortest course must in my view be the uneconomical step. best.

I - 6277

OPINION OF MR JACOBS - CASE C-383/99 P

Conclusion

110. I am thus of the opinion that the Court should:

(1) set aside the judgment of the Court of First Instance in Case T-163/98;

(2) alter the decision of the First Board of Appeal in Case R 35/1998-1 so that it