Opinion of the Advocate General — ECLI:EU:C:2005:786
Date: 2005-12-15
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

summary of the principles governing assessment of similarity laid down by the Court of Justice in Canon (23) and a correct application of those principles to the present case. (24) 49. I accordingly consider that the third ground of appeal is inadmissible or in the alternative unfounded. Conclusion 50. For the reasons given above I am of the view that the Court should: (1) dismiss the appeal; (2) order the applicant to pay the costs. 1 – Original language: English. 2 – Case T-203/02 The Sunrider Corp v OHIM [2004] ECR II-0000. 3 – Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended. 4 – By analogy with Article 15(3) of Regulation No 40/94, which in the context of revocation of a Community trade mark for lack of genuine use within five years of registration provides: ‘Use of the Community trade mark with the consent of the proprietor shall be deemed to constitute use by the proprietor’. 5 – Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1). 6 – Paragraph 24. 7 – Paragraph 25. 8 – Paragraphs 26 and 27. 9 – Paragraph 28. 10 – Cited in paragraph 21 of the judgment of the Court of First Instance, set out in point 17 above. The applicant refers to paragraph 29 of KLEENCARE. 11 – See most recently Case C-37/03 P BioID [2005] ECR I-0000, paragraph 43. 12 – Paragraphs B(V)(2)(b)(kk) to (qq) on pages 15 and 16. 13 – At paragraph B(V)(2)(b)(ss) on page 17 of the appeal. 14 – Paragraph B(V)(2)(b)(oo) on page 16. 15 – Paragraphs 36 and 38 to 42. 16 – Paragraphs 44 to 54. 17 – Case C-40/01 [2003] ECR I-2439. 18 – Case C-259/02 [2004] ECR I-1159. 19 – Paragraph 14 of the order. The Court in fact took that view of the first six questions referred, all of which concerned the extent and type of use, whereas with regard to the seventh question, which concerned the relevance of use after the filing of the application, which does not directly arise in the present case, it considered that the answer left no room for reasonable doubt. The judgment of 29 July 2005 of the Court of Appeal, England and Wales, delivered on appeal from the decision of the referring court, contains some interesting and helpful discussion of the issues ([2005] EWCA Civ 978). 20 – In paragraph 68. 21 – See paragraph 67 of its judgment, set out in point 19 above. 22 – Thus points B(V)(3)(b)(aa), (bb), (cc) and (ee)(aaa) and (bbb) of the appeal are in identical or similar terms to points B(III)(2)(c)(bb), (cc), (dd) and (ee) of the application before the Court of First Instance, summarised in paragraphs 59 to 61 of the judgment. 23 – Case C-39/97 [1998] ECR I-5507. 24 – See paragraphs 65 to 67.