Order — ECLI:EU:C:2011:790
Date: 2011-11-29
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Order of the Court (Eighth Chamber) of 29 November 2011 – Tresplain Investments v OHIM (Case C-76/11 P) Appeal – Community trade mark – Regulation (EC) No 40/94 – Articles 8(4) and 52(1)(c) – Community figurative mark Golden Elephant Brand – Application for a declaration of invalidity based on a non-registered national figurative mark GOLDEN ELEPHANT – Renvoi to the national law governing the earlier trade mark – Common-law action for passing-off 1. Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility (see para. 53) 2. Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see para. 73) Re: Appeals against the judgment of the General Court (Eighth Chamber) of 9 December 2010 in Case T-303/08 Tresplain Investments v OHIM – Hoo Hing by which that court dismissed the action brought by the proprietor of the Community figurative mark ‘Golden Elephant Brand’, for goods in class 30, against Decision R 889/2007-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7 May 2008, annulling the decision of the Cancellation Division which had rejected an application for a declaration of invalidity of that mark, brought by the proprietor of the unregistered national figurative mark ‘GOLDEN ELEPHANT’, for goods in class 30 – Interpretation and application of Article 8(4) of Regulation (EC) No 40/94 (now Article 8(4) of Regulation (EC) No 207/2009). Operative part 1. The appeal is dismissed. 2. Tresplain Investments Ltd is ordered to pay the costs.