Community trade mark Opposition proceedings Relative ground for refusal No likelihood of confusion Inadmissibility Article 8(1)(b) of Regulation (EC) No 40/94 Application for figurative Community trade mark Top iX Earlier international word mark TOFIX Request for proof of genuine use of the earlier mark submitted for the first time before the Court
Sumário
Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007.
NV Marly SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Community trade mark - Opposition proceedings - Application for figurative Community trade mark Top iX - Earlier international word mark TOFIX - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Request for proof of genuine use of the earlier mark submitted for the first time before the Court - Inadmissibility.
Case T-57/06.
Texto da decisão
Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007 – Marly v OHIM – Erdal (Top iX)
(Case T-57/06)
Community trade mark – Opposition proceedings – Application for figurative Community trade mark Top iX – Earlier international word mark TOFIX – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Request for proof of genuine use of the earlier mark submitted for the first time before the Court – Inadmissibility
1. Community trade mark – Appeals procedure – Action before the Community judicature (Rules of Procedure of the Court of First Instance, Art. 135(4); Council Regulation No 40/94, Arts 63(2) and 74(1)) (see paras 15-18)
2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 88, 90)
Re:
| ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004‑2) concerning opposition proceedings between Erdal GmbH and NV Marly SA. |
Information relating to the case
|
Applicant for the Community trade mark: |
NV Marly SA |
|
Community trade mark sought: |
Figurative mark Top iX for goods in Class 3 – Application No 2326072 |
|
Proprietor of the mark or sign cited in the opposition proceedings: |
Erdal GmbH |
|
Mark or sign cited in opposition: |
International word mark TOFIX for goods and services in Classes 3 and 4 |
|
Decision of the Opposition Division: |
Opposition upheld |
|
Decision of the Board of Appeal: |
Appeal dismissed |
Operative part
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders NV Marly SA to pay the costs. |