Judgment — ECLI:EU:T:2006:323
Date: 2006-10-17
Language of the case: French
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks applied for;Actions before the Community Courts;Partial use
Procedure: Action for annulment - successful

Summary of the Judgment 1. Community trade mark – Appeals procedure (Rules of Procedure of the Court of First Instance, Art. 133(2)) 2. Community trade mark – Observations of third parties and opposition – Examination of the opposition – Proof of use of the earlier mark (Council Regulation No 40/94, Art. 43(2) and (3)) 3. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services (Council Regulation No 40/94, Art. 8(1)(b)) 1. In appeal proceedings brought against a decision of a Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) ruling on opposition proceedings, nothing prevents the Office from endorsing a head of claim of the applicant’s or from simply leaving the decision to the discretion of the Court, while putting forward all the arguments that it considers appropriate for giving guidance to the Court. On the other hand, it may not seek an order annulling or altering the decision of the Board of Appeal on a point not raised in the application or put forward pleas in law not raised in the application. (see para. 13) 2. The last sentence of Article 43(2) of Regulation No 40/94 on the Community trade mark and Article 43(3), which applies Article 43(2) to earlier national marks, must be interpreted as meaning that if a trade mark has been registered for a category of goods or services which is sufficiently broad for it to be possible to identify within it a number of sub-categories capable of being viewed independently, proof that the mark has been put to genuine use in relation to a part of those goods or services affords protection, in opposition proceedings, only for the sub-category or sub-categories to which the goods or services for which the trade mark has actually been used belong. However, if a trade mark has been registered for goods or services defined so precisely and narrowly that it is not possible to make any significant sub-divisions within the category concerned, then the proof of genuine use of the mark for the goods or services necessarily covers the entire category for the purposes of the opposition. (see paras 26-27) 3. For the French public, composed of medical professionals and patients, as the end consumers, there is a likelihood of confusion between the word sign GALZIN, in respect of which registration as a Community trade mark is sought for ‘pharmaceutical preparations for the treatment of Wilson’s disease’ in Class 5 of the Nice Agreement and the word mark CALSYN, registered earlier in France for ‘pharmaceutical and medical preparations, more specifically calcium-based preparations’ in the same class. In terms of the overall impression, given the similarity of the goods concerned and the visual and phonetic similarities of the two marks, the apparent differences between the marks are not sufficient to eliminate the existence of a likelihood of confusion on the part of the relevant public. (see paras 65-66, 81)