Source: EURLEX
Language: en
Format: md

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| 9.6.2007 | EN | Official Journal of the European Union | C 129/11 |

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Appeal brought on 12 April 2007 by Aktieselskabet af 21. november 2001 against the judgment of the Court of First Instance (First Chamber) delivered on 6 February 2007 in Case T-477/04: Aktieselskabet af 21. November 2001 v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), TDK Kabushiki Kaisha (TDK Corp.)

(Case C-197/07 P)

(2007/C 129/20)

Language of the case: English

Parties

Appellant: Aktieselskabet af 21. november 2001 (represented by: C. Barrett Christiansen, advokat)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), TDK Kabushiki Kaisha (TDK Corp.)

Form of order sought

The appellant claims that the Court should:

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| — | set aside in whole the decision of the Court of First Instance dated 6 February 2007, case T-477/04 (the contested decision) |

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| — | order the Office for Harmonization in the Internal Market (OHIM) to pay the costs of the proceedings before the Court of Justice. |

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| — | set aside the decision of the First Board of Appeal of the Office for the Harmonization in the Internal Market dated 7 October 2004, case R-364/2003-1 |

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| — | order the Office for Harmonization in the Internal Market (OHIM) to pay the costs of the proceedings before the Court of First Instance and OHIM. |

Pleas in law and main arguments

With the present appeal, the Appellant submits that:

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|  | in finding reputation under 8(5) CTMR for the earlier marks the Court of First Instance wrongly:   |  |  | | --- | --- | | 1. | did not, in the contested decision, distinguish between the 36 earlier marks |  |  |  | | --- | --- | | 2. | took into account evidence which did not comply with official OHIM guidelines |  |  |  | | --- | --- | | 3. | took into account evidence with no reference to the earlier marks |  |  |  | | --- | --- | | 4. | took into account undated evidence |  |  |  | | --- | --- | | 5. | did not take into account that the relevant date for proving reputation is the filing date of the contested CTM application |  |  |  | | --- | --- | | 6. | confirmed reputation based on evidence which was not approximate in time to the filing date of the contested CTM application |  |  |  |  |  |  |  |  |  |  |  | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 7. | took into account a market survey as evidence of reputation without any proof as to:   |  |  | | --- | --- | | (a) | whether it has been conducted by an independent and recognised research institute or company |  |  |  | | --- | --- | | (b) | the number and profile (sex, age, occupation and background) of the interviewees |  |  |  | | --- | --- | | (c) | the method and circumstances under which the survey was carried out and the complete list of questions included in the questionnaire |  |  |  | | --- | --- | | (d) | whether the percentage reflected in the survey corresponds to the total amount of persons questioned or only to those who actually replied. | |  |  |  | | --- | --- | | 8. | did not consider the individual evidential value of the evidence submitted before making an overall assessment. | |

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|  | In finding unfair advantage of reputation under 8(5) CTMR the Court of First Instance wrongly:   |  |  | | --- | --- | | 9. | based its decision of unfair advantage on reputation — not repute — which does not comply with article 8(5) CTMR |  |  |  | | --- | --- | | 10. | found that a possibility which cannot be ruled out is sufficient to prove prima facie evidence of a future risk, which is not hypothetical, of the taking of unfair advantage by the applicant of the reputation of the earlier marks. | |

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