Case C-416/08 P: Appeal brought on 22 September 2008 by Apple Computer, Inc. against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-328/05 Apple Computer, Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
Date: 2008-09-22
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, appeal, information technology industry, operating system, software, trade-mark law

22.11.2008

EN

Official Journal of the European Union

C 301/25

Appeal brought on 22 September 2008 by Apple
Computer, Inc. against the judgment of the Court of First
Instance (Third Chamber) delivered on 1 July 2008 in Case
T-328/05 Apple Computer, Inc. v Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case C-416/08 P)

(2008/C 301/38)

Language of the case: English

Parties

The Opponent opposes the registration of
the Applicant's
QUARTZ mark on the basis that there would be a likelihood of
confusion between the two marks. The Court of First Instance
agreed.

The Applicant submits that the CFI erred in law because:

(a) the goods in respect of which the two marks would be
registered and used are clearly different and the CFI failed to
take into account those relevant differences;

(b) it did not correctly identify the relevant

for the
purposes of assessing whether confusion was likely. In par-
ticular, it did not give sufficient weight to the fact that the
relevant public must
specialists
employed in or providing services to the banking sector;
and

logically be

software

‘public’

Appellants: Apple Computer, Inc. (represented by: M. Hart, N.
Kearley, Solicitors)

(c) it

therefore misapplied the global appreciation test as

previously set out by the European Court of Justice.

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), TKS-Teknosoft SA

Form of order sought

The appellant claims that the Court should order that:

— The appeal by the applicant to the European Court of Justice

be allowed;

— The judgment of the Court of First Instance of the European
Communities (CFI) in case T-328/05 of 1 July 2008 be set
aside;

— The case be referred back to the CFI; and

— The costs in the case be reserved.

Action brought on 22 September 2008 — Commission of
the European Communities v United Kingdom of Great
Britain and Northern Ireland

(Case C-417/08)

(2008/C 301/39)

Language of the case: English

Pleas in law and main arguments

Parties

1. Apple, Inc., (the applicant) has applied to register a Com-
munity Trademark for the word mark ‘QUARTZ’. Its applica-
tion covers:

‘A computer operating system functionality specially intended for
use by IT developers with the aim of improving and accelerating the
reproduction of digital
images in application programs, except
products intended for the banking sector’ in Class 9.

Applicant: Commission of the European Communities (repre-
sented by: A.A. Gilly and U. Wölker, Agents)

Defendant: United Kingdom of Great Britain and Northern
Ireland

2. TKS-Teknosoft S.A.

registered
proprietor of a Community Trade Mark Registration for the
figurative mark ‘QUARTZ’, which was in respect of, amongst
other things:

‘Opponent’)

(the

the

is

The applicant claims that the Court should:

(a) ‘packets of programs for banking’ in Class 9; and

(b) ‘computer programming, computer data processing, computer
software development, assistance and consulting services in the
computer field electronic data processing, computer software
licensing of computer software and
design and development,
computer applications; all
services being linked to
banking’ in Class 42.

these

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/35/EC of the European Parliament and of the Council
of 21 April 2004 concerning environmental
liability with
regard to the prevention and remedying of environmental
damage (1), or in any event by failing to communicate them
to the Commission, the United Kingdom has failed to fulfil
its obligations under the Directive;