In American Clothing Associates v. OHIM [EUECJ] C-202/08 (16 July 2009) the Court of the First Chamber ("First Chamber") dismissed an appeal brought by American Clothing Associates NV ("American") and upheld the decision of the First Board of Appeal of OHIM ("OHIM Board") rejecting an application for registration of a sign representing a maple leaf as a Community trade mark as an imitation of the Canadian emblem. The First Chamber's decision was in response to appeals by both parties, as joint cases C-202/08 P and C-208/08 P, and set aside the split judgement of the Court of the First Instance (CFI) (Case T-215/06 American Clothing Associates v OHIM (Representation of a maple leaf) [2008] ECR II-303 ("the judgement under appeal"). American had filed an application for the registration of a Community trade of the image of a maple leaf, with the letters RW underneath the leaf. The Examiner refused registration of the mark pursuant to Article 7(1)(h) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark ("the Regulation"), which provides "absolute grounds for refusal" of the registration of trade marks, "which have not been authorised by the competent authorities and are to be refused pursuant to Article 6ter of the Paris Convention." Article 6ter 1(a) of the Convention for the Protection of Industrial Property ("Paris Convention") provides that the countries of the Union agree to refuse or to invalidate the registration ... either as trade marks or as elements of trade marks, of ... flags, and other State emblems, of the countries of the Union ... and any imitation from a heraldic point of view, unless 1(c) the registration is not of such a nature as to suggest to the public that a connection exists between the organisation concerned and ... the flags, emblems ... or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organisation. American appealed the Examiner's decision, which the OHIM Board dismissed. American then brought an action against the OHIM BoardâÄôs decision, claiming infringement of Article 7(1)(h) of the Regulation. In the judgement under appeal, the CFI partially annulled the Examiner's decision, on the ground that Article 6ter(1)(a) of the Paris Convention does not apply to service marks. In case C-202/08 P, American appeals to have the CFI's judgement set aside, in so far as it finds the non-infringement of Article 7(1)(h) of the Regulation.  In case C-208/08 P, the OHIM Board appeals to have tthe CFI's judgement set aside in so far as it held that Article 7(1)(h) of the Regulation and Article 6ter of the Paris Convention do not apply to marks designating services. American's Appeal (C-202/08 P) American argued that a State emblem is a protected sign like a trade mark, to which the same criteria for protection are applicable by analogy. The First Chamber disagreed, and held, at 45, that Article 6ter(1)(c) of the Paris Convention does not require there to be a connection, in the mind of the public, between the trade mark for which registration is sought and the emblem, and therefore the analogy is flawed. American argued that Article 6ter 1(a) of the Paris Convention is intended to protect those emblems from imitations "from a heraldic point of view," which is intended not to protect the symbol, but a very precise artistic interpretation, a specific graphic work. If an emblem has few heraldic characteristics, there can be no imitation. The First Chamber disagreed, and argued that Article 6ter of the Paris Convention accords wider protection, "since the inherently precise nature of a graphic description would lead to the emblem being refused protection," at 49. However, the First Chamber found that the assessment of the question of whether the trade mark applied for contained an imitation from the heraldic point of view fell outside the scope of its review, since an appeal lies on point of law only. The First Chamber, at 57, dismissed American's contention that the CFI had not given consideration to usual OHIM practice, and other national offices responsible for trade marks, since decisions taken by the OHIM Board are not discretionary, and must be assessed solely on the basis of that regulation, (Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-551, at 48). Further, the Community trade mark regime is an autonomous regime, and OHIM is not bound by the decisions of other member States. In conclusion, the First Chamber held, at 59, that Article 6ter of the Paris Convention applies to elements of trade marks and upheld the decision of the First Chamber, that the maple leaf represented on the trade mark applied for is an imitation of the Canadian emblem from the heraldic point of view. The OHIM Board's Appeal (C-208/08 P) OHIM contended that the First Chamber was incorrect in finding that neither the Paris Convention, nor Article 7(1)(h), applied to service marks, and that the Community legislature did not intend to discriminate between marks designating goods and marks designating services. The First Chamber found that, while the Paris Convention does not oblige States party to it to register service marks, those States are free to provide for such an application unilaterally. Therefore, at 73, the Paris Convention "leaves the extension of the protection guaranteed to trade marks for goods to service marks to the discretion of the States party to the Convention. In doing so, the Paris Convention does not require those States to distinguish between the two types of marks." The First Chamber found that because Articles 7(1)(e), (j) and (k) of the Regulation restrict the scope of the Community law provisions, it is clear that the Community law provision as a whole apply to trade marks and service marks, a finding that applies to Article 7(1)(h) of the Regulation, which contains no express restriction of the marks covered by it. In conclusion, the First Chamber found, at 81, that the CFI had erred in finding that, by refusing registration of the trade mark applied for in respect of services, the OHIM Board infringed Article 7(1)(h) of Regulation, and that, at 85, since the distinction made by the CFI between trade marks for goods and service marks was not well founded, it should be held that OHIM were entitled to refuse registration of the trade mark in respect of services.