Case T-115/02

AVEX Inc.

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Community trade mark – Opposition procedure – Application for a Community figurative mark comprising the letter ‘a’ – Earlier Community figurative mark comprising the letter ‘a’ – Likelihood of confusion)

Judgment of the Court of First Instance (Second Chamber), 13 July 2004

Summary of the Judgment

1. Community trade mark – Appeals procedure – Appeals before the Community judicature – Application initiating proceedings – Intervener’s response – Formal requirements – Summary statement of pleas – Pleas in law not put forward in the application and the response – General reference to other documents – Not admissible

(Rules of Procedure of the Court of First Instance, Arts 44(1), 46, 130(1), 132(1), and 135(1), second para.)

2. Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the holder of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Figurative marks including the letter ‘a’

3. (Council Regulation No 40/94, Art. 8(1)(b))

1. Under Article 44(1) of the Rules of Procedure of the Court of First Instance, which applies to intellectual property matters pursuant to Article 130(1) and Article 132(1) thereof, an application lodged in an action brought against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) must state the subject-matter of the proceedings and include a summary of the pleas raised. Although, in this connection, specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential elements of legal arguments which, under the provisions mentioned above, must be included in the application itself.

2. Since that interpretation can be transposed to the response of the other party to opposition proceedings before the Board of Appeal of the Office who intervenes before the Court of First Instance pursuant to Article 46 of the Rules of Procedure, which, by virtue of the second subparagraph of Article 135(1) thereof, applies in matters of intellectual property, both the response and the application, in so far as they refer to documents lodged by the applicant and the intervener respectively before the Office, are inadmissible to the extent to which the general references in them cannot be linked to the pleas and arguments put forward in the response and the application.

(see para. 11)

3. For final consumers in the European Community, there is a likelihood of confusion between the figurative sign which includes as a dominant element the lower-case white letter ‘a’, of a commonplace typeface, on a black background, in respect of which registration as a Community trade mark is sought for clothing, footwear and headgear falling within Class 25 of the Nice Agreement, and the mark which includes the letter ‘a’ with the same dominant characteristics, registered at an earlier stage as a Community trade mark in order to designate clothes falling within the same class, since the overall impressions produced by each of the conflicting signs are very similar and because the goods at issue must be regarded as similar within the meaning of Article 8(1)(b) of Regulation No 40/94 even if they are so in only a limited way in the case of footwear and clothing. In that last respect, the relevant public is likely to believe, in particular, that the commercial origin of footwear bearing the trade mark applied for is the same as that of clothing bearing the earlier trade mark.

(see paras 18, 23, 26-27)