# C_2005296EN.01001201.xml

| 26.11.2005 | EN | Official Journal of the European Union | C 296/12 |
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26.11.2005

EN

Official Journal of the European Union

C 296/12

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Appeal brought on 10 August 2005 by Creative Technology Ltd against the judgment delivered on 25 May 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-352/02 between Creative Technology Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being José Vila Ortiz

(Case C-314/05 P)

(2005/C 296/23)

Language of the case: English

An appeal against the judgment delivered on 25 May 2005 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-352/02 (1) between Creative Technology Ltd and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being José Vila Ortiz, was brought before the Court of Justice of the European Communities on 10 August 2005 by Creative Technology Ltd, established in Singapore (Singapore), represented by Stephen Jones and Paul Rawlinson, Solicitors.

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The Appellant claims that the Court should:

| i) | Set aside the judgment |
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i)

Set aside the judgment

| ii) | Set aside the Decision of the Board of Appeal |
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ii)

Set aside the Decision of the Board of Appeal

| iii) | Annul decision of the Opposition Division No 145/2001 be annulled |
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iii)

Annul decision of the Opposition Division No 145/2001 be annulled

| iv) | Allow the Applicant's Trade Mark to proceed to registration |
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iv)

Allow the Applicant's Trade Mark to proceed to registration

| v) | Order that the Opponent pays to the Applicant/Appellant the costs incurred by the Applicant/Appellant in connection with this appeal and the appeal before the CFI, the Board of Appeal and the opposition before the Opposition Division. |
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v)

Order that the Opponent pays to the Applicant/Appellant the costs incurred by the Applicant/Appellant in connection with this appeal and the appeal before the CFI, the Board of Appeal and the opposition before the Opposition Division.

Pleas in law and main arguments:

The Appellant submits that the Community Trade Mark Application for the word PC WORKS is not confusingly similar to the earlier Spanish trade mark for the figurative mark that includes the words W WORK PRO. It is submitted that the Opposition Division, the Fourth Board of Appeal and the Court of First Instance erred in their respective analysis of the global appreciation of the marks in question and in particular the undue weight given to the WORK element present in both marks.

It is further submitted that the Opposition Division, the Fourth Board of Appeal and the Court of First Instance failed to recognise that the goods in question are not casual purchases but bought by consumers after careful consideration and in particular that they failed to appreciate the proper characteristics of the reasonably well-informed and observant and circumspect member of the relevant public in that such a member of the relevant public in this case would not buy those goods without close examination.

Accordingly, it was wrong of the Court of First Instance to uphold the decisions of the Opposition Division and the Fourth Board of Appeal and reject the application in its entirety.

Hence, it is submitted that this appeal against the decision of the Opposition Division, the Fourth Board of Appeal and the Court of First Instance ought to be allowed, and the decisions of the Opposition Division, the Fourth Board of Appeal and the Court of First Instance ought to be annulled in their entirety. The Applicant/Appellant also seeks costs in these appeal proceedings and the proceedings before the Opposition Division, the Fourth Board of Appeal and the Court of First Instance.

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(1)  OJ C182, 23.07.05, p. 35

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