# C_2005182EN.01003101.xml

| 23.7.2005 | EN | Official Journal of the European Union | C 182/31 |
| --- | --- | --- | --- |

23.7.2005

EN

Official Journal of the European Union

C 182/31

---

Appeal brought on 17 May 2005 by Sergio Rossi SpA against the judgment delivered on 1 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-169/03 between Sergio Rossi SpA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-214/05 P)

(2005/C 182/54)

Language of the case: Italian

An appeal against the judgment delivered on 1 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-169/03 between Sergio Rossi SpA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 17 May 2005 by Sergio Rossi SpA, represented by A. Ruo of the Alicante Bar (Spain).

The appellant claims that the Court should:

| 1. | set aside in full the judgment under appeal for infringement of Articles 8 and 73 of Council Regulation (EC) No 40/94 (1) and Articles 44(1) and 81 of the Rules of Procedure of the Court of First Instance; |
| --- | --- |

1.

set aside in full the judgment under appeal for infringement of Articles 8 and 73 of Council Regulation (EC) No 40/94 (1) and Articles 44(1) and 81 of the Rules of Procedure of the Court of First Instance;

1

| 2. | in the alternative, set aside in part the judgment under appeal only as regards the registration of the trade mark SISSI ROSSI in respect of ‘leather and imitations of leather’; |
| --- | --- |

2.

in the alternative, set aside in part the judgment under appeal only as regards the registration of the trade mark SISSI ROSSI in respect of ‘leather and imitations of leather’;

| 3. | in the further alternative, uphold the right to produce evidence, set aside in full the judgment under appeal and refer the present dispute back to the Court of First Instance for it to examine the evidence held to be inadmissible or, in the alternative and, pursuant to the right to be heard under Article 73 of Council Regulation (EC) No 40/94, refer the present dispute to the Board of Appeal of OHIM for it to set a time-limit within which the parties can present their comments; |
| --- | --- |

3.

in the further alternative, uphold the right to produce evidence, set aside in full the judgment under appeal and refer the present dispute back to the Court of First Instance for it to examine the evidence held to be inadmissible or, in the alternative and, pursuant to the right to be heard under Article 73 of Council Regulation (EC) No 40/94, refer the present dispute to the Board of Appeal of OHIM for it to set a time-limit within which the parties can present their comments;

| 4. | order the respondent as the unsuccessful party to pay the costs pursuant to Article 69(2) of the Rules of Procedure of the Court of Justice of the European Communities. |
| --- | --- |

4.

order the respondent as the unsuccessful party to pay the costs pursuant to Article 69(2) of the Rules of Procedure of the Court of Justice of the European Communities.

Pleas in law and main arguments

The appellant submits that the judgment under appeal is flawed in that it infringes the following rules:

| 1. | Article 81 of the Rules of Procedure of the Court of First Instance in that the judgment under appeal does not state reasons in respect of the primary claim made in the action. |
| --- | --- |

1.

Article 81 of the Rules of Procedure of the Court of First Instance in that the judgment under appeal does not state reasons in respect of the primary claim made in the action.

| 2. | Article 44(1) of the Rules of Procedure of the Court of First Instance in that evidence produced by the appellant, which in the opinion of the appellant should have been accepted, was held to be inadmissible; in the alternative, the appellant submits that Article 73 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark was infringed in that, in the proceedings before the Board of Appeal of OHIM, the appellant was not given the opportunity to present its comments on whether or not the goods in question are similar. |
| --- | --- |

2.

Article 44(1) of the Rules of Procedure of the Court of First Instance in that evidence produced by the appellant, which in the opinion of the appellant should have been accepted, was held to be inadmissible; in the alternative, the appellant submits that Article 73 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark was infringed in that, in the proceedings before the Board of Appeal of OHIM, the appellant was not given the opportunity to present its comments on whether or not the goods in question are similar.

| 3. | Article 8 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark in that the marks Miss Rossi and Sissi Rossi should be regarded as incompatible. Given the similarity of both the goods and the marks the question of whether there is a likelihood of confusion between those marks within the meaning of that article should be reconsidered. |
| --- | --- |

3.

Article 8 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark in that the marks Miss Rossi and Sissi Rossi should be regarded as incompatible. Given the similarity of both the goods and the marks the question of whether there is a likelihood of confusion between those marks within the meaning of that article should be reconsidered.

---

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

1

---