Case C-131/06 P: Appeal brought on  27 February 2006  by Castellblanch, SA against the judgment of the Court of First Instance delivered on  8 December 2005  in Case T-29/04: Castellblanch, SA v Office of Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Champagne Louis Roederer, SA
Date: 2006-05-06
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, General Court (EU), action for annulment, champagne, sparkling wine, trade-mark law

C 108/10

EN

Official Journal of the European Union

6.5.2006

Pleas in law and main arguments

contested goods and rejected the trade mark application No
55962 for all the contested goods;

The appellant claims that the judgment of the Court of First
Instance is flawed by reason of:

incorrect legal characterisation of the case as a result of misre-
presentation and distortion of the evidence;

infringement of Community rules of procedure relating to the
taking of evidence.

Appeal brought on 27 February 2006 by Castellblanch, SA
against the judgment of the Court of First Instance deliv-
ered on 8 December 2005 in Case T-29/04: Castellblanch,
SA v Office of Harmonisation in the Internal Market
(OHIM), Champagne Louis
(Trade Marks and Designs)

Roederer, SA

(Case C-131/06 P)

(2006/C 108/17)

Language of the case: English

Parties

Appellant: Castellblanch, SA (represented by: F. de Visscher, E.
Cornu, E. De Gryse and D. Moreau, avocats)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (OHIM), Champagne
Louis Roederer, SA

Form of order sought

The appellant claims that the Court should:

— annul the judgment of the Court of First Instance of 8
December 2005 in case T-29/04 Castellblanch, SA v Office
of Harmonisation in the Internal Market (Trade Marks and
insofar that it found that the Second Board of
Designs),
Appeal of
the Office of Harmonisation in the Internal
Market (Trade Marks and Designs) did not infringe Article
8(1)(b) of Council Regulation (EC) No 40/94 (1) of 20
December 1993 on the Community trade mark in adopting
its decision of 17 November 2003 (Case R0037/2002-2)
and to give final judgment in the matter and therefore:

— to annul the decision of the Second Board of Appeal of the
(Trade
Office of Harmonisation in the Internal Market
Marks and Designs) of 17 November 2003 (Case R0037/
2000-2) insofar as it dismissed the appeal of Castellblanch
SA and upheld the opposition No B 15703 for all the

— order the Office of Harmonisation in the Internal Market
(Trade Marks and Designs) to bear the costs both at first
instance and on appeal.

Pleas in law and main arguments

The judgment of the Court of First Instance infringes the Com-
munity Law insofar as the Court of First Instance took into
account two new documents that were produced for the first
time before it, which the Court of First Instance should have
declared inadmissible.

The Appellant does not appeal the contested judgment with
regard to its first plea in law in its application for annulment
before the Court of First Instance, insofar as the Court found
that the proprietor of the earlier trade mark had given sufficient
proof of the use of the earlier trade mark in the territory
concerned. However, the Appellant criticises the fact that the
Court did not take into consideration the nature of the use of
the earlier trade mark when comparing the signs, and, in par-
ticular, did not take into consideration the impact of that use
on the distinctive character of the earlier trade mark.

the Court of First

As the comparison between the goods and the likelihood of
Instance's judgment violates
confusion,
several provisions of Community law with respect
to the
Appellant's argument that proof of use of the earlier trade
mark had only been given for ‘Champagne’ and not for all the
goods for which the earlier trade mark is registered. Further-
more, where the Court of First Instance compares ‘Champagne’
and ‘Cava’, in its assessment of the likelihood of confusion, the
Appellant is of the opinion that the judgment contains contra-
dictory reasoning because the Court of First Instance judged,
on the one hand, that consumers are generally particularly
interested in the origin of the wines and, on the other hand,
that ‘Champagne’ and ‘Cava’ are similar. As a consequence, the
Court of First
Instance wrongly assessed the likelihood of
confusion in the present case.

In its assessment of the likelihood of confusion, the Court of
First Instance wrongly failed to consider the impact of the
manner in which the prior trademark has been used; nor did it
correctly assess the respective weights of the evocative and
non-evocative parts of the Appellant's trade mark in its assess-
ment of the similarity between the conflicting trade marks. As
a consequence, the Court of First Instance wrongly assessed te
likelihood of confusion in the present case.

(1) OJ L 011, P. 1-36