Judgment — ECLI:EU:C:2008:234
Date: 2008-04-17
Language of the case: French
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Trade marks;Intellectual, industrial and commercial property
Concepts: Word marks applied for;General
Procedure: Action for annulment - successful;Appeal - successful
Origin: Germany

Appeal brought on 23 February 2007 by Ferrero Deutschland GmbH against the judgment delivered by the Court of First Instance (Third Chamber) on 15 December 2006 in Case T-310/04 Ferrero Deutschland GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Cornu SA Fontain. (Case C-108/07P) Language of the case: French Parties Appellant: Ferrero Deutschland GmbH (represented by: M. Schaeffer, Rechtsanwalt) Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Cornu SA Fontain Form of order sought set aside the judgment of the Court of First Instance (Third Chamber) of 15 December 2006 in Case T-314/04 Ferrero Deutschland v OHIM - Cornu SA Fontain; order OHIM and the intervener to pay the costs of the proceedings. Pleas in law and main arguments The appellant puts forward a single plea in law in support of its appeal, alleging an infringement of Community law by the Court of First Instance and, more specifically, that it incorrectly interpreted Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark1. In that connection, the applicant puts forward the following five arguments. First, the Court failed to take account of the fact that the salted and sweet goods concerned are produced and marketed to a relevant extent by the same undertakings, including the intervener itself. Second, the Court committed an error of law by holding that the goods concerned are only slightly similar, whereas, in this case, it should have found at least an average degree of similarity. Third, the Court committed an error of law by attributing only 'a certain degree of similarity' to the marks 'Ferrero' and 'Ferro', whereas the arguments that the Court itself put forward in its judgment should have led to the conclusion that those marks have an average degree or even high degree of similarity. Fourth, the Court failed to take sufficient account of the documents submitted by the appellant in order to highlight the highly distinctive character of the mark 'Ferrero'. Finally, in its assessment of the likelihood of confusion, the Court committed an error of law by failing to take account of the many factors mentioned in the seventh recital in the preamble to Regulation (EC) No 40/94. ____________ 1 - OJ 1994 L 11, p. 1.