EN Official Journal of the European Union C 207/4

Appeal brought on 9 April 2013 by Marek Marszałkowski against the judgment of the General Court (First Chamber) delivered on 4 February 2013 in Case T-159/11 Marszałkowski v Office for Harmonisation in the Internal Market (Trade Marks and Designs) — Mar-Ko Fleischwaren GmbH & Co. KG

(Case C-177/13 P)

2013/C 207/06

Language of the case: Polish

Parties

Appellant: Marek Marszałkowski (represented by: C. Sadkowski, radca prawny)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Mar-Ko Fleischwaren GmbH & Co. KG

Form of order sought

The appellant claims that the Court should:

— set aside in its entirety the judgment under appeal of the General Court, confirm the invalidity of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 January 2011 (Case R 760/2010-4), order OHIM to proceed with registration of the mark ‘Marko Walichnowy’ applied for on behalf of the appellant in so far as it concerns the goods mentioned in the appeal, and order the other party to the appeal proceedings to pay the costs of the present proceedings and the costs of the proceedings before the General Court;

— in the alternative, set aside in its entirety the judgment under appeal of the General Court and refer the case back to that Court for reconsideration, in accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice.

Pleas in law and main arguments

The appellant claims that the General Court breached Article 8(1)(b) of Regulation No 207/2009 and Article 48(2) of its own Rules of Procedure.

With regard to the breach of Article 8(1)(b) of Regulation No 207/2009, the appellant submits that the General Court:

— committed a beach of law in failing to examine correctly whether the goods covered by the application for registration of the marks in conflict were similar;

— committed a breach of law in misapplying Article 8(1)(b) by finding that the marks in conflict were similar;

— committed a breach of law in finding that the word MARKO was the dominant element of the sign ‘Walichnowy Marko’;

— committed a breach of law in failing to define the relevant public in respect of whom there was a likelihood of confusion, and in indicating that that likelihood existed in the mind of the average Polish consumer;

— committed a breach of law in failing to have regard for the reputation of the trade mark ‘Walichnowy Marko’ and in failing to take account of the fact that it has enjoyed priority within Polish territory since as early as 1995;

— committed a breach of law in failing to have regard for the level of attention which the average consumer has for the goods to which the marks in conflict are attached and in failing to consider whether that level of attention might reduce the likelihood of confusion.

With regard to the breach of Article 48(2) of the Rules of Procedure of the General Court, the appellant submits that, in paragraph 26 of the judgment under appeal, the General Court erred in holding that it was not until the stage of the hearing that the present appellant stated that the mark applied for had been registered in Poland since 1995.