Order — ECLI:EU:C:2006:271
Date: 2006-04-27
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: General
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Notice for the OJ Appeal brought on 28 May 2005 by L'Oréal SA against the judgment delivered on 16 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-112/03 between L'Oréal SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) having been Revlon Suisse SA (Case C-235/05 P) (Language of the case: English) An appeal against the judgment delivered on 16 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in case T-112/031 between L'Oréal SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) having been Revlon Suisse SA., was brought before the Court of Justice of the European Communities on 28 May 2005 by L'Oréal SA, established in Paris (France), represented by Mr Xavier Buffet Delmas d'Autane. The Appellant claims that the Court should: a) set aside the Judgment of the Court of First Instance of 16 March 2005 in Case T-112/03 in its entirety and annul the decision of the Fourth Board of Appeal of the OHIM of 15 January 2003 regarding the appeal No R0396/2001-4 relating to the opposition proceedings No B 215048 (Community application No 1011576); b) order the OHIM to pay all the costs. Pleas in law and main arguments: The Appellant submits that the Court of First Instance infringed Article 8(1)(b) of Regulation No 40/942, and did not draw the legal conclusions from its own findings, by refusing to take into account the weak character of the prior mark (such as FLEX) in its assessment of the degree of similarity between this mark and a complex mark (such as FLEXI AIR), in which it was reproduced. It is submitted that signs are not similar or dissimilar in abstracto, but in concreto (i.e. in light of the perception of the relevant public of such signs). Thus, if the signs had been correctly compared in concreto, the logical conclusion would have been to place less importance on non distinctive signs or prior marks with a weak distinctive character. The Appellant also contends that the Court of First Instance infringed Articles 36 and 53 of the Statute of the Court of Justice, the contested Judgment being vitiated by a defective statement of reasons. It is submitted that the Court of First Instance breached its duty to state reasons by merely ruling, at paragraph 82, that the "weak distinctive character of the earlier mark is not disputed", without drawing any conclusion on the likelihood of confusion. ____________ 1 - OJ C 132, 28.05.2005, p. 25 2 - Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark OJ L 011, 14.01.1994, p. 1