Source: EURLEX
Language: en
Format: md

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/26 |

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Appeal brought on 1 June 2006 by Saiwa s.p.a. against the judgement of the Court of First Instance (First Chamber) delivered on 5 April 2006 in Case T-344/03 Saiwa s.p.a. v Office for Harmonisation in the Internal Market (OHIM) and Barilla Alimentare s.p.a.

(Case C-245/06 P)

(2006/C 178/41)

Language of the case: Italian

Parties

Appellant: Saiwa s.p.a. (represented by: G. Sena, P. Tarchini, J.-P. Karsenty, M. Karsenty-Ricard, lawyers)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Barilla Alimentare

Form of order sought

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| — | Set aside the judgement under appeal. |

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| — | Grant the form of order sought at first instance, and therefore annul, for infringement of Article 8(1)(b) of Regulation (EC) No 40/94[(1)](#ntr1-C_2006178EN.01002601-E0001), the decision of the Fourth Board of Appeal of the OHIM of 18 July 2003 in Case R 480/2002-4 and the rejection of the application for registration of Barilla Alimentare s.p.a. No 289.405. |

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| — | Order the OHIM and Barilla Alimentare s.p.a. to pay the costs of all of the proceedings |

Pleas in law and main arguments

The applicant puts forward a single ground for annulment based on infringement of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant claims that the expression ‘ORO’ (of which the trade mark which is the subject of the dispute consists, or which in any case forms part thereof) has inherent distinctive character; that with reference to the international mark (which is also the subject of the present dispute) part of the relevant public is unaware of the meaning of the word ‘ORO’ and that this is common knowledge and does not have to be proved by the parties; that having regard to the principle of interdependence, given the identity of the goods covered and signs in question, it is sufficient that the earlier sign has only weak distinctiveness.

The applicant submits moreover that the distinctive character of the word ‘ORO’ is reinforced and/or acquired through use, with regard to both the trade mark ‘ORO’ and the trade mark ‘ORO SAIWA’.

The applicant finally submits that the trade marks ‘ORO’ and ‘ORO SAIWA’ on the one hand, and ‘Selezione ORO BARILLA’ on the other hand, are likely to be confused and that in any case there is a likelihood of association between them.

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