# C_2010288EN.01002401.xml

| 23.10.2010 | EN | Official Journal of the European Union | C 288/24 |
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23.10.2010

EN

Official Journal of the European Union

C 288/24

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Appeal brought on 23 August 2010 by Herhof-Verwaltungsgesellschaft mbH against the judgment of the General Court (Fourth Chamber) delivered on 7 July 2010 in Case T-60/09 Herhof-Verwaltungsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs), other party to the proceedings before the Board of Appeal of OHIM: Stabilator sp zoo

(Case C-418/10 P)

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(2010/C 288/42)

Language of the case: German

Parties

Appellant: Herhof-Verwaltungsgesellschaft mbH (represented by: A. Zinnecker and S. Müller, Rechtsanwälte)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Stabilator sp zoo

Form of order sought

| — | Set aside the judgment of the General Court of the European Union of 7 July 2010 in Case T-60/09; |
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Set aside the judgment of the General Court of the European Union of 7 July 2010 in Case T-60/09;

| — | Deliver final judgment in the case and uphold the forms of order sought by the appellant in the course of the proceedings at first instance; |
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Deliver final judgment in the case and uphold the forms of order sought by the appellant in the course of the proceedings at first instance;

| — | In the alternative, set aside the judgment referred to in the first indent above and refer the matter back to the General Court; |
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In the alternative, set aside the judgment referred to in the first indent above and refer the matter back to the General Court;

| — | Order OHIM to pay the costs. |
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Order OHIM to pay the costs.

Pleas in law and main arguments

| 1. | First the grounds of the judgment under appeal are, in and of themselves, contradictory. On the one hand, the General Court accepts that the Board of Appeal limited itself to examining which types of undertaking would offer the opposing goods and services, and thereby wrongly assessed the number of those undertakings possibly as a consequence of a too-narrow interpretation of the lists of earlier marks resulting from an overall assessment of the goods and services. On the other hand, the question whether the Board of Appeal made errors of assessment can be decided upon only after an assessment of ‘the Board of Appeal’s prevailing examination of each of the goods and services covered by the application’, whereas the General Court then undertakes those individual assessments — which had not been carried out by the Board of Appeal — in order to reach the conclusion that no errors made by the Board of Appeal were apparent. That inconsistency had a burdensome effect on the appellant, since in the context of the individual comparisons undertaken by General Court, constant recourse was had to the ‘overall comparison’, carried out by the Board of Appeal on the basis of sectors, so that the restrictive interpretation of the lists of goods and services covered by earlier marks resulting from that ‘overall comparison’ is repeated. |
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1.

First the grounds of the judgment under appeal are, in and of themselves, contradictory. On the one hand, the General Court accepts that the Board of Appeal limited itself to examining which types of undertaking would offer the opposing goods and services, and thereby wrongly assessed the number of those undertakings possibly as a consequence of a too-narrow interpretation of the lists of earlier marks resulting from an overall assessment of the goods and services. On the other hand, the question whether the Board of Appeal made errors of assessment can be decided upon only after an assessment of ‘the Board of Appeal’s prevailing examination of each of the goods and services covered by the application’, whereas the General Court then undertakes those individual assessments — which had not been carried out by the Board of Appeal — in order to reach the conclusion that no errors made by the Board of Appeal were apparent. That inconsistency had a burdensome effect on the appellant, since in the context of the individual comparisons undertaken by General Court, constant recourse was had to the ‘overall comparison’, carried out by the Board of Appeal on the basis of sectors, so that the restrictive interpretation of the lists of goods and services covered by earlier marks resulting from that ‘overall comparison’ is repeated.

| 2. | Second, the General Court infringed Article 8(1)(b) of Regulation No 207/2009, in that, for each of the individual comparisons of the lists of goods and services of the marks at issue which it carried out, the General Court interpreted them too narrowly in the light of the overall comparison on the basis of sectors carried out by the Board of Appeal, and the General Court thereby distorted the content of those lists and, consequently, distorted the factors such as nature, use, intended purpose and addressees of the relevant goods and services which result therefrom. |
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2.

Second, the General Court infringed Article 8(1)(b) of Regulation No 207/2009, in that, for each of the individual comparisons of the lists of goods and services of the marks at issue which it carried out, the General Court interpreted them too narrowly in the light of the overall comparison on the basis of sectors carried out by the Board of Appeal, and the General Court thereby distorted the content of those lists and, consequently, distorted the factors such as nature, use, intended purpose and addressees of the relevant goods and services which result therefrom.

| 3. | Third, the General Court infringed Article 65 of Regulation No 207/2009 and its own Rules of Procedure, in particular the therein referred to Community law principle of the right to a fair hearing, in that it did not allow specific documents in evidence, although it was not possible for the appellant to produce those documents before OHIM, as it could not have predicted that OHIM would not compare the individual goods and services of the relevant signs against one another but rather merely examine them by way of an overall assessment. |
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3.

Third, the General Court infringed Article 65 of Regulation No 207/2009 and its own Rules of Procedure, in particular the therein referred to Community law principle of the right to a fair hearing, in that it did not allow specific documents in evidence, although it was not possible for the appellant to produce those documents before OHIM, as it could not have predicted that OHIM would not compare the individual goods and services of the relevant signs against one another but rather merely examine them by way of an overall assessment.

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