Order of the Court (Fifth Chamber) of 8 March 2012 — Longevity Health Products v OHIM

(Case C-81/11 P)

‛Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Application for Community word mark RESVEROL — Opposition by the proprietor of the earlier international word mark LESTEROL — Assessment of the likelihood of confusion — Rights of the defence’

1. Community trade mark — Appeals procedure — Action brought before the Union judicature — Jurisdiction of the General Court — Leave to lodge a reply — Discretion of the General Court (Rules of Procedure of the General Court, Art. 135(2)) (see para. 19)

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), TFEU; Statute of the Court of Justice, Art. 58, first para.) (see para. 27)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 16 December 2010 in Case T-363/09 Longevity Health Products v OHIM — Gruppo Lepetit, by which that court dismissed an action brought by the applicant for word mark ‘RESVEROL’, for goods and services in Classes 3, 5 and 35, against decision R 1204/2008-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 9 July 2009, dismissing the appeal lodged against the Opposition Division’s decision which refused in part registration of that mark in the context of the opposition brought by the proprietor of the national word marks ‘LESTEROL’, for goods in Class 5.

Operative part

1. The appeal is dismissed.

2. Longevity Health Products Inc. is ordered to pay the costs.

Order of the Court (Fifth Chamber) of 8 March 2012 — Longevity Health Products v OHIM

(Case C-81/11 P)

‛Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Application for Community word mark RESVEROL — Opposition by the proprietor of the earlier international word mark LESTEROL — Assessment of the likelihood of confusion — Rights of the defence’

1. Community trade mark — Appeals procedure — Action brought before the Union judicature — Jurisdiction of the General Court — Leave to lodge a reply — Discretion of the General Court (Rules of Procedure of the General Court, Art. 135(2)) (see para. 19)

2. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), TFEU; Statute of the Court of Justice, Art. 58, first para.) (see para. 27)

Re:

Appeal brought against the judgment of the General Court (Fifth Chamber) of 16 December 2010 in Case T-363/09 Longevity Health Products v OHIM — Gruppo Lepetit, by which that court dismissed an action brought by the applicant for word mark ‘RESVEROL’, for goods and services in Classes 3, 5 and 35, against decision R 1204/2008-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 9 July 2009, dismissing the appeal lodged against the Opposition Division’s decision which refused in part registration of that mark in the context of the opposition brought by the proprietor of the national word marks ‘LESTEROL’, for goods in Class 5.

Operative part

1. The appeal is dismissed.