# C_2006108EN.01001001.xml

| 6.5.2006 | EN | Official Journal of the European Union | C 108/10 |
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6.5.2006

EN

Official Journal of the European Union

C 108/10

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Appeal brought on 27 February 2006 by Castellblanch, SA against the judgment of the Court of First Instance delivered on 8 December 2005 in Case T-29/04: Castellblanch, SA v Office of Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Champagne Louis Roederer, SA

(Case C-131/06 P)

(2006/C 108/17)

Language of the case: English

Parties

Appellant: Castellblanch, SA (represented by: F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, avocats)

Appellant:

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Champagne Louis Roederer, SA

Other parties to the proceedings:

Form of order sought

The appellant claims that the Court should:

| — | annul the judgment of the Court of First Instance of 8 December 2005 in case T-29/04 Castellblanch, SA v Office of Harmonisation in the Internal Market (Trade Marks and Designs), insofar that it found that the Second Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) did not infringe Article 8(1)(b) of Council Regulation (EC) No 40/94 (1) of 20 December 1993 on the Community trade mark in adopting its decision of 17 November 2003 (Case R0037/2002-2) and to give final judgment in the matter and therefore: |
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annul the judgment of the Court of First Instance of 8 December 2005 in case T-29/04 Castellblanch, SA v Office of Harmonisation in the Internal Market (Trade Marks and Designs), insofar that it found that the Second Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) did not infringe Article 8(1)(b) of Council Regulation (EC) No 40/94 (1) of 20 December 1993 on the Community trade mark in adopting its decision of 17 November 2003 (Case R0037/2002-2) and to give final judgment in the matter and therefore:

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| — | to annul the decision of the Second Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) of 17 November 2003 (Case R0037/2000-2) insofar as it dismissed the appeal of Castellblanch SA and upheld the opposition No B 15703 for all the contested goods and rejected the trade mark application No 55962 for all the contested goods; |
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to annul the decision of the Second Board of Appeal of the Office of Harmonisation in the Internal Market (Trade Marks and Designs) of 17 November 2003 (Case R0037/2000-2) insofar as it dismissed the appeal of Castellblanch SA and upheld the opposition No B 15703 for all the contested goods and rejected the trade mark application No 55962 for all the contested goods;

| — | order the Office of Harmonisation in the Internal Market (Trade Marks and Designs) to bear the costs both at first instance and on appeal. |
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order the Office of Harmonisation in the Internal Market (Trade Marks and Designs) to bear the costs both at first instance and on appeal.

Pleas in law and main arguments

The judgment of the Court of First Instance infringes the Community Law insofar as the Court of First Instance took into account two new documents that were produced for the first time before it, which the Court of First Instance should have declared inadmissible.

The Appellant does not appeal the contested judgment with regard to its first plea in law in its application for annulment before the Court of First Instance, insofar as the Court found that the proprietor of the earlier trade mark had given sufficient proof of the use of the earlier trade mark in the territory concerned. However, the Appellant criticises the fact that the Court did not take into consideration the nature of the use of the earlier trade mark when comparing the signs, and, in particular, did not take into consideration the impact of that use on the distinctive character of the earlier trade mark.

As the comparison between the goods and the likelihood of confusion, the Court of First Instance's judgment violates several provisions of Community law with respect to the Appellant's argument that proof of use of the earlier trade mark had only been given for ‘Champagne’ and not for all the goods for which the earlier trade mark is registered. Furthermore, where the Court of First Instance compares ‘Champagne’ and ‘Cava’, in its assessment of the likelihood of confusion, the Appellant is of the opinion that the judgment contains contradictory reasoning because the Court of First Instance judged, on the one hand, that consumers are generally particularly interested in the origin of the wines and, on the other hand, that ‘Champagne’ and ‘Cava’ are similar. As a consequence, the Court of First Instance wrongly assessed the likelihood of confusion in the present case.

In its assessment of the likelihood of confusion, the Court of First Instance wrongly failed to consider the impact of the manner in which the prior trademark has been used; nor did it correctly assess the respective weights of the evocative and non-evocative parts of the Appellant's trade mark in its assessment of the similarity between the conflicting trade marks. As a consequence, the Court of First Instance wrongly assessed te likelihood of confusion in the present case.

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(1)  OJ L 011, P. 1-36

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