CELEX: C2003/124/08
Language: en
Date: 2003-05-24 00:00:00
Title: Case C-106/03 P: Appeal brought on 27 February 2003 by fax, confirmed by original lodged on 7 March 2003, by Védial SA against the judgment delivered on 12 December 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-110/01 between Védial SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party being France Distribution

24.5.2003               EN                        Official Journal of the European Union                                              C 124/5
Appeal brought on 27 February 2003 by fax, confirmed                            attribute the same commercial origin to the goods in
by original lodged on 7 March 2003, by Védial SA against                        question’. However, a likelihood of confusion also exists
the judgment delivered on 12 December 2002 by the                               where the public may believe that the goods come from
Fourth Chamber of the Court of First Instance of the                            undertakings which are connected only economi-
European Communities in Case T-110/01 between Védial                            cally. Moreover, the Court of First Instance rejected any
SA and the Office for Harmonisation in the Internal                             likelihood of confusion on the ground that ‘even though
Market (Trade Marks and Designs) (OHIM), the other                              there is identity and similarity between the goods covered
                 party being France Distribution                                by the conflicting marks, the visual, aural and conceptual
                                                                                differences between the signs’ mean that there is no
                         (Case C-106/03 P)                                      likelihood of confusion, whereas the question is not
                                                                                whether there are differences between the conflicting
                          (2003/C 124/08)                                       marks, but whether there is identity or similarity between
                                                                                them and whether, considered as a whole with the
                                                                                identity or similarity of the goods, the degrees of those
                                                                                similarities are such that there is a likelihood of confusion.
An appeal against the judgment delivered on 12 December
2002 by the Fourth Chamber of the Court of First Instance of                    In addition, the Court of First Instance did not apply the
the European Communities in Case T-110/01 between Védial                        interdependence rule clearly. The Court of First Instance
SA and the Office for Harmonisation in the Internal Market                      did not raise the point that the claimed low degree of
(Trade Marks and Designs) (OHIM), the other party being                         similarity between the marks was not offset by the high
France Distribution, was brought before the Court of Justice of                 degree of similarity between the goods and the strongly
the European Communities on 27 February 2003 by fax,                            distinctive character of the applicant’s trade mark.
confirmed by original lodged on 7 March 2003, by Védial SA.
                                                                                Finally, the Court of First Instance infringed the concept
                                                                                of ‘likelihood of confusion’ by limiting the public con-
The appellant claims that the Court should:                                     cerned to the ‘targeted public’, the latter comprising only
                                                                                consumers likely to acquire the marked goods, whereas
—     set aside the judgment of the Court of First Instance of                  the public concerned consists of all persons likely to be
      12 December 2002 in Case T-110/01 and accordingly
                                                                                confronted with the mark, which is very different.
      —     acting pursuant to Article 54 of the Statute of the
            Court of Justice, give final judgment in the matter,
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
            granting the forms of order sought by the applicant                Community trade mark (OJ L 11, 14.1.1994, p. 1).
            before the Court of First Instance;
      —     .in the alternative: refer the case back to the Court
            of First Instance for judgment;
—     in any case: order OHIM to pay the costs.
                                                                          Appeal brought on 27 February 2003 by fax, confirmed
Pleas in law and main arguments                                           by the original lodged on 7 March 2003, by The Procter
                                                                          & Gamble Company against the judgment delivered on
—     Plea alleging breach of the ‘principle of party disposition’        12 December 2002 by the Fourth Chamber of the Court
      The ‘principle of party disposition’ is a general principle         of First Instance of the European Communities in Case
      of law under which the parties exercise, in principle, sole         T-63/01 between The Procter & Gamble Company and
      control over legal proceedings. It is they who delimit the          the Office for Harmonisation in the Internal Market
      subject-matter of the dispute. The Court of First Instance                        (Trade Marks and Designs) (OHIM)
      certainly acted in breach of the ‘principle of party
      disposition’ by holding, contrary to the agreement of the                                    (Case C-107/03 P)
      parties on this point, that there was no similarity between
      the conflicting trade marks.
                                                                                                    (2003/C 124/09)
—     Plea alleging breach of the right to a fair hearing
      The Court of First Instance also acted in breach of the
      right to a fair hearing since it undermined the applicant’s
                                                                          An appeal against the judgment delivered on 12 December
      legitimate expectation as to the delimitation of the
                                                                          2002 by the Fourth Chamber of the Court of First Instance of
      dispute.
                                                                          the European Communities in Case T-63/01 between The
—     Plea alleging infringements of the concept of ‘likelihood           Procter & Gamble Company and the Office for Harmonisation
      of confusion’ and the concept of ‘public’ within the                in the Internal Market (Trade Marks and Designs) (OHIM)
      meaning of Article 8(1)(b) of Regulation No 40/94 (1)               was brought before the Court of Justice of the European
                                                                          Communities on 27 February 2003 by fax, confirmed by the
      The contested judgment rules out the likelihood of                  original lodged on 7 March 2003, by The Procter & Gamble
      confusion on the ground that the public ‘will not                   Company.