Case C-106/03 P: Appeal brought on 27 February 2003 by fax, confirmed by original lodged on 7 March 2003, by Védial SA against the judgment delivered on 12 December 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-110/01 between Védial SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party being France Distribution
Date: 2003-05-24
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, General Court (EU), action for failure to act, condiment, hotel industry, milk product, trade mark, trade-mark law

24.5.2003

EN

Official Journal of the European Union

C 124/5

Appeal brought on 27 February 2003 by fax, confirmed
by original lodged on 7 March 2003, by Védial SA against
the judgment delivered on 12 December 2002 by the
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-110/01 between Védial
SA and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), the other
party being France Distribution

(Case C-106/03 P)

(2003/C 124/08)

An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-110/01 between Védial
SA and the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM), the other party being
France Distribution, was brought before the Court of Justice of
the European Communities on 27 February 2003 by fax,
confirmed by original lodged on 7 March 2003, by Védial SA.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance of
12 December 2002 in Case T-110/01 and accordingly

— acting pursuant to Article 54 of the Statute of the
Court of Justice, give final judgment in the matter,
granting the forms of order sought by the applicant
before the Court of First Instance;

— .in the alternative: refer the case back to the Court

of First Instance for judgment;

— in any case: order OHIM to pay the costs.

Pleas in law and main arguments

— Plea alleging breach of the ‘principle of party disposition’

The ‘principle of party disposition’ is a general principle
of law under which the parties exercise, in principle, sole
control over legal proceedings. It is they who delimit the
subject-matter of the dispute. The Court of First Instance
the ‘principle of party
certainly acted in breach of
disposition’ by holding, contrary to the agreement of the
parties on this point, that there was no similarity between
the conflicting trade marks.

— Plea alleging breach of the right to a fair hearing

The Court of First Instance also acted in breach of the
right to a fair hearing since it undermined the applicant’s
legitimate expectation as to the delimitation of
the
dispute.

— Plea alleging infringements of the concept of ‘likelihood
of confusion’ and the concept of ‘public’ within the
meaning of Article 8(1)(b) of Regulation No 40/94 (1)

The contested judgment rules out
the likelihood of
confusion on the ground that the public ‘will not

attribute the same commercial origin to the goods in
question’. However, a likelihood of confusion also exists
where the public may believe that the goods come from
undertakings which are
connected only economi-
cally. Moreover, the Court of First Instance rejected any
likelihood of confusion on the ground that ‘even though
there is identity and similarity between the goods covered
by the conflicting marks, the visual, aural and conceptual
differences between the signs’ mean that there is no
likelihood of confusion, whereas the question is not
whether there are differences between the conflicting
marks, but whether there is identity or similarity between
them and whether, considered as a whole with the
identity or similarity of the goods, the degrees of those
similarities are such that there is a likelihood of confusion.

In addition, the Court of First Instance did not apply the
interdependence rule clearly. The Court of First Instance
did not raise the point that the claimed low degree of
similarity between the marks was not offset by the high
degree of similarity between the goods and the strongly
distinctive character of the applicant’s trade mark.

Finally, the Court of First Instance infringed the concept
of ‘likelihood of confusion’ by limiting the public con-
cerned to the ‘targeted public’, the latter comprising only
consumers likely to acquire the marked goods, whereas
the public concerned consists of all persons likely to be
confronted with the mark, which is very different.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ L 11, 14.1.1994, p. 1).

Appeal brought on 27 February 2003 by fax, confirmed
by the original lodged on 7 March 2003, by The Procter
& Gamble Company against the judgment delivered on
12 December 2002 by the Fourth Chamber of the Court
of First Instance of the European Communities in Case
T-63/01 between The Procter & Gamble Company and
the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM)

(Case C-107/03 P)

(2003/C 124/09)

An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of
the European Communities in Case T-63/01 between The
Procter & Gamble Company and the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) (OHIM)
was brought before the Court of Justice of the European
Communities on 27 February 2003 by fax, confirmed by the
original lodged on 7 March 2003, by The Procter & Gamble
Company.