EN Official Journal of the European Union C 80/15

Appeal brought on 14 January 2010 by REWE-Zentral AG against the judgment of the Court of First Instance (Sixth Chamber) delivered on 11 November 2009 in Case T-150/08 REWE-Zentral AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs), intervener: Aldi Einkauf GmbH & Co. OGH

(Case C-22/10 P)

2010/C 80/28

Language of the case: German

Parties

Appellant: REWE-Zentral AG (represented by: M. Kinkeldey and A. Bognár, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Aldi Einkauf GmbH & Co. OHG

Form of order sought

The appellant claims that the Court should:

— set aside the contested decision of the Court of First Instance of 11 November 2009;

— order the defendant and respondent to pay the costs of these proceedings and the costs of the proceedings before the Court of First Instance

Pleas in law and main arguments

The present appeal is against the judgment of the Court of First Instance by which that court dismissed the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 15 February 2008 rejecting its application for registration of the word sign CLINA. By its judgment the Court of First Instance confirmed the Board of Appeal’s decision according to which there is a likelihood of confusion with the earlier Community word mark CLINAIR.

The appellant relies on one ground of appeal alleging breach of Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.

The Court of First Instance erred in law by not carrying out a comprehensive global assessment of all the relevant factors when it assessed the likelihood of confusion. As a result of its assumption that there is a high degree of aural and visual similarity between the signs at issue, which was in turn the result of an error of law, it held that the conceptual differences between those signs could not be counteracted, which is correspondingly likewise due to an error of law. Furthermore, the Court of First Instance did not assess the very low degree of distinctiveness of the earlier mark in a legally correct manner. The Court of First Instance therefore erred in law in its application of Article 8(1)(b) of Regulation No 40/94 and thus breached Community law.

In particular, the Court of First Instance did not sufficiently take into account the fact that the signs to be compared CLINAIR and CLINA exhibit fundamental aural and visual differences which have to be taken into account for legal reasons and that the earlier mark CLINAIR has a particular meaning, which likewise has to be taken into account for legal reasons and which the later mark completely lacks. Likewise, the Court of First Instance did not take into consideration that the element ‘CLIN’ has a particularly weak distinctive character and can therefore, for legal reasons, only have a minimal effect on the overall impression made by the mark CLINAIR. For that reason in turn the mere fact that there is correspondence as regards that element is not, for legal reasons, sufficient to give rise to a likelihood of confusion under Article 8(1)(b) of Regulation No 40/94, particularly as the existing aural, visual and conceptual differences are significant.