First plea in law, alleging a breach of the presumption of innocence, the rights of the defence, the right to protection of personal data and the secrecy or confidentiality of investigations, as protected by Articles 8 and 48 of the Charter of Fundamental Rights of the European Union, by Articles 6 and 8 of the European Convention on Human Rights, and by Article 16 TFEU.

The first ground of appeal: error of law committed in the assessment of the principles relating to the rights of the defence

The obligation to have recourse to a third party for the purposes of representation before the Community courts does not in any way restrict the means at the disposal of the party in question for pursuing his case and does not therefore adversely affect his rights in that regard.

The second ground of appeal seeks specifically to call into question the interpretation of Article 74(1) of Regulation No 40/94 adopted by the Court of First Instance to dismiss the allegation, raised in the context of the first plea in law at first instance, concerning the lack of concrete examples capable of substantiating the Board of Appeal’s assertions regarding the customary nature of the wrappers at issue.

As regards the first part of the first ground of appeal, it is settled case-law that the distinctive character of a trade mark, within the meaning of Article 7(1)(b) of Regulation No 40/94, must be assessed, firstly, by reference to the goods or services in respect of which registration has been applied for and, secondly, by reference to the perception of them by the relevant public, which consists of average consumers of the goods or services in question who are reasonably well informed and reasonably observant and circumspect (see, in particular, Joined Cases C-456/01 P and C-457/01 P Henkel v OHIM [2004] ECR I‑5089, paragraph 35, and ...[+++]Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-0000, paragraph 25).

It should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate to the required legal standard that the conditions for applying such defence are satisfied.