Source: EURLEX
Language: en
Format: md

**Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007 – Marly v OHIM – Erdal (Top iX)**

**(Case T-57/06)**

Community trade mark – Opposition proceedings – Application for figurative Community trade mark Top iX – Earlier international word mark TOFIX – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Request for proof of genuine use of the earlier mark submitted for the first time before the Court – Inadmissibility

1.                     *Community trade mark – Appeals procedure – Action before the Community judicature (Rules of Procedure of the Court of First
Instance, Art. 135(4); Council Regulation No 40/94, Arts 63(2) and 74(1)) (see paras 15-18)*

2.                     *Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services (Council Regulation
No 40/94, Art. 8(1)(b)) (see paras 88, 90)*

**Re:**

|  |  |
| --- | --- |
|  | ACTION brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004‑2) concerning opposition proceedings between Erdal GmbH and NV Marly SA. |

**Information relating to the case**

|  |  |
| --- | --- |
| Applicant for the Community trade mark: | NV Marly SA |
| Community trade mark sought: | Figurative mark Top iX for goods in Class 3 – Application No 2326072 |
| Proprietor of the mark or sign cited in the opposition proceedings: | Erdal GmbH |
| Mark or sign cited in opposition: | International word mark TOFIX for goods and services in Classes 3 and 4 |
| Decision of the Opposition Division: | Opposition upheld |
| Decision of the Board of Appeal: | Appeal dismissed |

**Operative part**

The Court:

|  |  |  |
| --- | --- | --- |
| 1. |  | Dismisses the action; |

|  |  |  |
| --- | --- | --- |
| 2. |  | Orders NV Marly SA to pay the costs. |

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