# C_2011038EN.01000201.xml

| 5.2.2011 | EN | Official Journal of the European Union | C 38/2 |
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5.2.2011

EN

Official Journal of the European Union

C 38/2

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Appeal brought on 16 November 2010 by adp Gauselmann GmbH against the judgment of the General Court (Seventh Chamber) delivered on 9 September 2010 in Case T-106/09: adp Gauselmann GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

(Case C-532/10 P)

2011/C 38/02

Language of the case: English

Parties

Parties

Appellant: adp Gauselmann GmbH (represented by: P. Koch Moreno, lawyer)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Archer Maclean

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Annul the appealed judgment dated 9 September 2010 of the General Court (Seventh Chamber) in Case T-106/09. |
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Annul the appealed judgment dated 9 September 2010 of the General Court (Seventh Chamber) in Case T-106/09.

| — | Annul the decision of 12 January 2009 issued by the First Board of Appeal of OHIM or, subsidiarily, return the case to the General Court of the European Union. |
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Annul the decision of 12 January 2009 issued by the First Board of Appeal of OHIM or, subsidiarily, return the case to the General Court of the European Union.

| — | Order the adverse parties to pay the costs incurred in both instances. |
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Order the adverse parties to pay the costs incurred in both instances.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant submits that the General Court's judgment was not consistent with the case law relating to the interpretation of article 8(1)(b) of the Community Trade Mark Regulation (1). The appellant's submission is based on the following grounds:

1

| — | The appellant maintains that the General Court was wrong to give the words ‘Archer Maclean's’, which have a clearly secondary or marginal representation within the whole of the trademark applied for, which renders them almost illegible, the same differentiating value as the word ‘MERCURY’, which is the distinctive and dominant element, when reaching the conclusion that there is no likelihood of confusion with the opposing mark, ‘MERKUR’. |
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The appellant maintains that the General Court was wrong to give the words ‘Archer Maclean's’, which have a clearly secondary or marginal representation within the whole of the trademark applied for, which renders them almost illegible, the same differentiating value as the word ‘MERCURY’, which is the distinctive and dominant element, when reaching the conclusion that there is no likelihood of confusion with the opposing mark, ‘MERKUR’.

| — | The appellant maintains that the judgment of the General Court was wrong in its assessment of the two marks, since the word ‘MERCURY’, which is the distinctive and dominant element in the trademark applied for, not only lacks any meaning in the language of the relevant market, i.e. Germany, but is also very similar, phonetically and visually, to the opposing trademark, ‘MERKUR’. |
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The appellant maintains that the judgment of the General Court was wrong in its assessment of the two marks, since the word ‘MERCURY’, which is the distinctive and dominant element in the trademark applied for, not only lacks any meaning in the language of the relevant market, i.e. Germany, but is also very similar, phonetically and visually, to the opposing trademark, ‘MERKUR’.

| — | Finally the appellant maintains that the General Court was wrong to consider the minimal differences between the word ‘MERCURY’, which is the distinctive and dominating element in the trademark applied for, and ‘MERKUR’, which is the symbol of the opposing trademark, to be sufficient to prevent the public from confusing the two trademarks. |
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Finally the appellant maintains that the General Court was wrong to consider the minimal differences between the word ‘MERCURY’, which is the distinctive and dominating element in the trademark applied for, and ‘MERKUR’, which is the symbol of the opposing trademark, to be sufficient to prevent the public from confusing the two trademarks.

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(1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

1

OJ L 78, p. 1

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