EN Official Journal of the European Union C 86/8

Appeal brought on 19 December 2012 by Isdin, SA against the judgment of the General Court (Fourth Chamber) delivered on 9 October 2012 in Case T-366/11: Bial-Portela & Ca, SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-597/12 P)

2013/C 86/12

Language of the case: English

Parties

Appellant: Isdin, SA (represented by: H. L. Mosback, Advocate, G. Marín Raigal, P. López Ronda, G. Macias Bonilla, abogados)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Bial-Portela & Ca, SA

Form of order sought

The appellant claims that the Court should:

— annul the contested decision;

— confirm the decision of 6 April 2001 of the First Board of Appeal of OHIM dismissing the opposition in its entirety;

— order Bial-Portela & Ca, SA to pay the costs.

Pleas in law and main arguments

The appellant submits that there has been a distortion of the evidence by the General Court, since that Court stated, in paragraph 34 of the contested Judgement, that ‘the Board of Appeal erred in finding that there is no phonetic similarity between the signs’. However, the Board of Appeal did not, as the General Court stated, err in finding that there was no phonetic similarity between the signs, but instead correctly analysed the phonetic similarity between the signs, and concluded that despite the phonetic similarities between the signs, the global sonority of the signs is different. This representation believes that the above conclusion of the Board of Appeal, which was distorted by the General Court, should be confirmed.

In addition, the appellant submits that there has been a distortion of the facts by the General Court since it stated, in paragraph 40 of the contested Judgement, that ‘the goods in Class 3 and a large proportion of the goods in Class 5 (…) are normally marketed on display in supermarkets and therefore chosen by customers after a visual examination of their packaging’. This factual finding was not backed up by any evidence and thereby distorted the facts on which a decision should have been based. In addition, this fact was not put forward by any of the parties, and therefore could only be taken into consideration if it was well known (and given the arguments in support of the lack of plausibility of this fact, to consider it as such would amount in itself to a distortion of the facts). Therefore, this fact cannot be used as a basis for a finding of likelihood of confusion.

The appellant also submits that the principle of audi alteram partem enshrined in Article 76(1) CTMR (1) (former Article 74(1) of Regulation 40/94 (2)) has been infringed and that the General Court erred in its application of Article 8(l)(b) CTMR and relevant case law, thereby infringing Union law. The General Court did not carry out an overall assessment of the marks at issue, taking into account all factors relevant to the circumstances of the present case.

(1) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark

OJ L 78, p. 1

(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

OJ L 11, p. 1