Judgment — ECLI:EU:C:2009:146
Date: 2009-03-12
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Earlier trade mark which has a reputation
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Italy

Judgment of the Court (First Chamber) of 12 March 2009 – Antartica v OHIM (Case C‑320/07 P) Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(5) – Refusal to register – Earlier trade mark of repute NASDAQ – Figurative sign ‘nasdaq’ – Use of the earlier mark for goods and services allegedly offered free of charge – Taking unfair advantage of the distinctive character or the repute of the earlier mark – Relevant public 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 enjoying a reputation – Protection of well-known earlier mark extended to dissimilar goods or services (Council Regulation No 40/94, Art. 8(5)) (see paras 48-51) Re: Appeal against the judgment of the Fourth Chamber of the Court of First Instance of 10 May 2007 in Case T-47/06 Antartica v OHIM , by which that Court dismissed as unfounded an action brought by the applicant for registration of the figurative trade mark ‘nasdaq’ in respect of goods in Classes 9, 12, 14, 25 and 28 against Decision R752/2004-2 of the Second Board of Appeal of OHIM of 7 December 2005 setting aside the Opposition Division’s decision which rejected the opposition brought by the proprietor of the Community and national word marks ‘NASDAQ’ in respect of goods in Classes 9, 16, 35, 36, 38 and 42 – Interpretation of Article 8(5) of Council Regulation (EC) No 40/94 on the Community trade mark. Operative part The Court: 1. Dismisses the appeal; 2. Orders Antartica Srl to pay the costs.