Case C-198/11 P: Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.
Date: 2011-04-20
Institutions: Court of Justice
Subjects: Spain, air transport, consumer protection, trade mark








C_2011186EN.01001602.xml










25.6.2011   


EN


Official Journal of the European Union


C 186/16





Appeal brought on 28 April 2011 by Lan Airlines S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 February 2011 in Case T-194/09 Lan Airlines S.A. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.
(Case C-198/11 P)
2011/C 186/28
Language of the case: Spanish

Parties


Appellant: Lan Airlines S.A. (represented by: E. Armijo Chávarri, abogado)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Air Nostrum, Líneas Aéreas del Mediterráneo, S.A.

Form of order sought







—


Set aside the judgment of the General Court of 8 February 2011 in its entirety.










—


Deliver a new judgment on the substance of the case (the opposition brought by LAN Airlines, S.A. against Air Nostrum’s Community trade mark application for the word mark LÍNEAS AÉREAS DEL MEDITERRÁNEO LAM) or refer the case back to the General Court for judgment.










—


In any event, order OHIM to pay the costs.





Pleas in law and main arguments


Error in the General Court’s interpretation of Article 8(1)(b) of Regulation No 40/94
 (1)
(now Regulation No 207/09)
 (2)

The appeal alleges infringement by the judgment under appeal of the case-law that states that the global assessment of the likelihood of confusion must be based, in relation to the visual, aural or conceptual similarity of the signs at issue, on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components when those components by themselves dominate the image of the composite mark.
The appellant submits that the General Court did not take into account the relevant elements of the case (essentially the particular features of the sector, the nature of the Community trade mark application and the criterion of the perception of the relevant consumer) when it evaluated the actual effect of the ‘LAM’ element, incorporated in the contested trade mark application, on the average Spanish consumer’s perception of the mark.
The appellant submits that the correct assessment of the circumstances of the case should have led the General Court to recognise that the contested trade mark application would be perceived, first and foremost, in light of the ‘LAM’ acronym and to compare that trade mark application with the appellant’s marks by reference to that element.
The premiss upon which the appeal is brought is that if the General Court had recognised that point, it would have appreciated that there was a likelihood of confusion between the LÍNEAS AÉREAS DEL MEDITERRÁNEO Community trade mark application and the appellant’s LAN trade marks.


(1)  Council Regulation of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

(2)  Council Regulation of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).