Judgment — ECLI:EU:T:2007:333
Date: 2007-11-07
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: Figurative marks applied for;Actions before the Community Courts
Procedure: Action for annulment - unfounded
Origin: Belgium

Action brought on 17 February 2006 - Marly v OHIM (Case T -57/06) Language in which the application was lodged: French Parties Applicant: Marly SA (Brussels, Belgium) (represented by: B. Mouffe, lawyer) Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) Other party to the proceedings before the Board of Appeal of OHIM: Erdal Gesellschaft m.b.H. (Hallein, Austria) Form of order sought The applicant claims that the Court should: annul the decision of the Board of Appeal of OHIM in so far as it upholds the opposition by the proprietor of the word mark 'TOFIX'; order the defendant to pay the costs, including expenses necessarily incurred during proceedings before the Board of Appeal, incurred by the party initiating the proceedings and as calculated in the decision under appeal. Pleas in law and main arguments Applicant for a Community trade mark: the applicant Community trade mark concerned: the figurative mark 'TOPIX' for goods in Class 3 (application No 2 326 072) Proprietor of the mark or sign cited in the opposition proceedings: Erdal Gesellschaft m.b.H. Mark or sign cited in opposition: the international word mark 'TOFIX' for goods in Classes 3 and 4 Decision of the Opposition Division: opposition upheld in respect of all the disputed goods Decision of the Board of Appeal: appeal dismissed Pleas in law: infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94 in that there is a visual and conceptual difference between the conflicting trade marks and a very great difference between the goods to which the two trade marks relate. ____________