On 1 April 1996, Frosch Touristik GmbH applied for the CTM "FLUGBÖRSE" for services of a travel agent in class 39 and others. FLUGBÖRSE is German for "flight bourse", "flight market" and can be understood as "flight data base". The CTM was registered on 29 October 1998. A competitor applied for a declaration that the registration was invalid inasmuch as it was covered by the absolute grounds for refusal laid down in Article 7(1)(b) and (c) of Regulation No 40/94 (now Article 7(1)(b) and (c) of Regulation No 207/2009). The Cancellation Divion and OHIM Fourth Board of Appeal invalidated the registration, stating

"in order to be registered, a Community trade mark must meet the conditions in Article 7 of Regulation No 40/94 not only on the date of filing of the application, but also throughout the registration procedure"

It therefore concluded that the assessment of the application for invalidity must be made in the light of the market conditions as they were on the date of registration of the mark on 29 October 1998. At that time, the trade mark FLUGBÖRSE was, in the German-speaking part of the Community, purely descriptive of the goods and services in question.

The Court of First Instance reversed:

"[...] the only date relevant for the purposes of the assessment of an application for a declaration of invalidity under Article 51(1)(a) of Regulation No 40/94 is the date of filing of the application for the mark at issue. The fact that the case‑law allows material subsequent to that date to be taken into account, far from weakening that interpretation of Article 51(1)(a) of Regulation No 40/94, reinforces it, since it is only possible to take such material into account if it relates to the situation on the date of filing of the trade mark application."

Moreover, that interpretation of Article 51(1)(a) of Regulation No 40/94 is the only interpretation which avoids a situation in which the probability of the mark losing its registrability increases with the length of the registration procedure. The interpretation suggested by OHIM in the present case would amount, conversely, to making the registration of the mark dependent, in part, on a contingency, namely the length of the registration procedure.

English decision T‑189/07