Source: EURLEX
Language: en
Format: md

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| 29.7.2006 | EN | Official Journal of the European Union | C 178/22 |

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Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on 15 March 2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh

(Case C-225/06 P)

(2006/C 178/36)

Language of the case: English

Parties

Appellant: Athinaïki Oikogeniaki Artopoiia AVEE (represented by: A. Tsavdaridis, Attorney at Law)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferrero OHG mbh

Form of order sought

The applicant claim that the Court should:

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| — | Annul the contested decision of the Court of First Instance |

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| — | Reject definitely and in its entirety the opposition to registration of the mark applied |

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| — | Order the Office and intervener to pay the costs, including those incurred in opposition proceedings and before the Board of Appeal and the Court of First Instance. |

Pleas in law and main arguments

The appellant maintains that the Court of First Instance erred in interpreting article 8 (1) (b) of Regulation (EC) No 40/94[(1)](#ntr1-C_2006178EN.01002202-E0001) because:

The Court of First Instance ignored the fact that the appreciation of the likelihood of confusion depends on numerous elements, mentioned in the seventh recital of the preamble to Council Regulation (EC) No 41/94[(2)](#ntr2-C_2006178EN.01002202-E0002) and, in particular, on the recognition of the trade mark on the market and not only on the degree of similarity between the trade mark and the sign and between the goods and services identified.

The earlier trade mark ‘Ferrero’ is not being used to identify products sold on the German market. As a result there is no likelihood of confusion for the average German consumer who does not associate the trademark ‘Ferrero’ with its products, whatever the degree of similarity between the two signs.

The Court of First Instance also ignored the fact that, according to the settled case-law of the Court of Justice, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case. Furthermore, a global assessment of the likelihood of confusion implies some interdependence between the relevant factors. The appellant submits that, had the Court of First Instance taken into account the interdependence of the relevant factors, it would have concluded that there is little risk of confusion.

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