Case C-312/05 P: Appeal brought on 8 August 2005 by TeleTech Holdings, Inc. against the judgment delivered on 25 May 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-288/03 between TeleTech Holdings, Inc. and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (intervener: TeleTech International, S.A.)
Date: 2005-10-01
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), appeal, telecommunications, trade-mark law

C 243/12

EN

Official Journal of the European Union

1.10.2005

The appellant claims that the Court should set aside the judg-
ment under appeal and uphold its claims.

Grounds of appeal and main arguments

The appeal is founded on three grounds of appeal:

The first ground of appeal alleges infringement by the Second
Board of Appeal of the principle of legality and of the rights of
defence of Naipes Heraclio Fournier, S.A.. The Court of First
Instance should not have confined itself to consideration of the
legality of the contested decision but should have carried out a
new and thorough examination of the case in the light of the
wording of the contested decisions and the specific claims of
the applicant and the intervener.

The second ground of appeal alleges that the Second Board of
Appeal
infringed the principle of legality and Article 7(1)(b)
and (c) of Regulation No 40/94. (1) The Court of First Instance
exceeded its jurisdiction in that it rectified and corrected with
its own arguments the substantive errors made by the Second
Board of Appeal
in connection with the application of the
grounds of refusal in Article 7(1)(b) and (c) of Regulation No
40/94 to the appellant's figurative marks.

The third ground of appeal alleges that the judgment under
appeal fails to state grounds for the purposes of Article 253
EC. The judgment under appeal does not show clearly and
unequivocally the reasons which led the Court to hold that the
absolute ground for refusal in Article 7(1)(b) of Regulation No
40/94 applied to the applicant's figurative marks.

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

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

Appeal brought on 8 August 2005 by TeleTech Holdings,
Inc. against the judgment delivered on 25 May 2005 by
the Second Chamber of the Court of First Instance of the
European Communities in Case T-288/03 between Tele-
Tech Holdings, Inc. and the Office for Harmonisation in
the Internal Market (Trade Marks and Designs) (OHIM),
(intervener: TeleTech International, S.A.)

(Case C-312/05 P)

(2005/C 243/20)

(Language of the case: Spanish)

An appeal against the judgment delivered on 25 May 2005 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in Case T-288/03 between TeleTech Hold-
ings,
Inc. and the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), (intervener: Tele-
Tech International, S.A.), was brought before the Court of
Justice of the European Communities on 8 August 2005 by
TeleTech Holdings, Inc, represented by E. Armijo Chávarri and
A. Castán Pérez-Gómez, lawyers.

The appellant claims that the Court should set aside the judg-
ment under appeal and uphold its claims.

Grounds of appeal and main arguments

This appeal is founded on two grounds of appeal:

The first ground of appeal is based on the premiss that the
Court of First Instance infringed Article 52 of Regulation No
40/94 (1) (in conjunction with Article 8(1)(b) of that regulation)
by having misinterpreted that provision in breach of the prin-
ciple of coexistence and equivalence between Community
marks and national marks. This ground of appeal
further
complains of an infringement, also on account of incorrect
interpretation, of Article 74 of Regulation No 40/94 and of the
appellant's rights of defence.

The second ground of appeal alleges that the Court of First
Instance's interpretation of Article 8(1)(b) Regulation No 40/94
is vitiated by an error of law resulting from the Court's incor-
rect application of the test relating to the perception of the
relevant public when assessing the likelihood of confusion
between the conflicting marks.

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

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