Case C-512/04 P: Appeal brought on 15 December 2004 by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG against the judgment delivered on 6 October 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-356/02 between Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs), supported by Krafft SA
Date: 2005-02-19
Institutions: Court of Justice
Subjects: EU trade mark, General Court (EU), action for annulment (EU), trade-mark law

C 45/18

EN

Official Journal of the European Union

19.2.2005

Pleas in law and main arguments

The period for transposition of Directive 2000/56/EC expired
on 30 September 2003.

(1) OJ L 237 of 21.9.2000, p. 45.

Appeal brought on 15 December 2004 by Vitakraft-Werke
Wührmann & Sohn GmbH & Co. KG against the judgment
delivered on 6 October 2004 by the Second Chamber of
the Court of First Instance of the European Communities
in Case T-356/02 between Vitakraft-Werke Wührmann &
Sohn GmbH & Co. KG and the Office for Harmonisation
(Trade Marks and Designs),
in the Internal Market

supported by Krafft SA

(Case C-512/04 P)

(2005/C 45/33)

(Language of the case: German)

An appeal against the judgment delivered on 6 October 2004
by the Second Chamber of the Court of First Instance of the
European Communities in Case T-356/02 between Vitakraft-
Werke Wührmann & Sohn GmbH & Co. KG and the Office for
Harmonisation in the Internal Market
(Trade Marks and
Designs), supported by Krafft SA, was brought before the Court
of Justice of the European Communities on 15 December 2004
by Vitakraft-Werke Wührmann & Sohn GmbH & Co. KG,
represented by Dr Ulrich Sander, Eisenführ, Speiser & Partner,
Martinistrasse 24, D-28195 Bremen.

The appellant claims that the Court should:

Set aside the judgment delivered on 6 October 2004 by the
Court of First Instance (Second Chamber) in Case T-356/02, 1
in so far as the decision was to the appellant's detriment.

Pleas and main arguments

The question to be decided in the present case is that of the
likelihood of confusion within the meaning of Article 8(1)(b) of
Regulation No 40/94 of 20 December 1993 on the Com-
munity trade mark. The Court of First Instance found that there
was a likelihood of confusion on the part of the Spanish public
between the marks ‘KRAFFT’ (Spanish national marks) cited in
opposition and ‘VITAKRAFT’,
the Community trade mark
applied for. The Court of First Instance expressly based its deci-

in the appellant's view,

sion on its own earlier decision in Case T-6/01 Matratzen
Concord v OHIM – Hukla Germany (MATRATZEN) (upheld by
order of the Court of Justice on 28 April 2004 in Case 3/03 P).
that case concerned an
However,
entirely different situation and cannot be compared to the
present case. The Matratzen case concerned a (conflicting) mark
composed of three separate words, ‘Matratzen Markt Concord’,
which in the view of the Court of First Instance was likely to
be confused (also by the Spanish public) with the Spanish
national mark ‘MATRATZEN’, the distinguishing element in the
case being that the earlier Spanish mark ‘MATRATZEN’ was
registered for
the German word
‘Matratzen’ (mattresses) was therefore monopolised in Spain as
a mark, because the German clearly was not perceived as
descriptive by the Spanish consumer. According to the appel-
lant, however, such trade mark rights should, in a harmonised
Europe, be granted only restricted protection in opposition
proceedings against an application for a Community trade
mark and, therefore, the appellant, first of all, fundmentally
challenges the bias of the approach taken in the ‘MATRATZEN’
decision.

‘mattresses’;

the goods

Furthermore, the appellant sets out the differences between the
marks cited in opposition in the present case and those in the
‘MATRATZEN’ case, since in the case of the application for the
Community trade mark ‘VITAKRAFT’ the Spanish consumer
would have to separate, mentally or in terms of the typography
or of the sound, the prefix ‘VITA’ from the whole mark ‘VITAK-
RAFT’ and there is no clear reason why this should be done.
Finally, the appellant considers the problems for the free move-
ment of goods which might conceivably arise if the bias of the
‘MATRATZEN’ decision is not properly adjusted.

Removal from the register of Case C-410/02 (1)

(2005/C 45/34)

(Language of the case: English)

By order of 25 October 2004 the President of the Court of
Justice of the European Communities has ordered the removal
from the register of Case C-410/02: Commission of the Euro-
pean Communities v Ireland.

(1) OJ C 7 of 11.1.03.