CELEX: 62006TJ0057
Language: en
Date: 2007-11-07 00:00:00
Title: Judgment of the Court of First Instance (Fifth Chamber) of 7 November 2007. # NV Marly SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # 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. # Case T-57/06.

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.