CELEX: 62002TJ0352
Language: en
Date: 2005-05-25
Title: Judgment of the Court of First Instance (Fourth Chamber) of 25 May 2005. # Creative Technology Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Community trade mark - Opposition proceedings - Application for a Community word mark PC WORKS - Earlier national figurative mark W WORK PRO - Refusal of registration - Article 8(1)(b) of Regulation (EC) No 40/94. # Case T-352/02.

Case T-352/02
      Creative Technology Ltd
      v
      Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
      (Community trade mark – Opposition proceedings – Application for a Community word mark PC WORKS – Earlier national figurative mark W WORK PRO – Refusal of registration – Article 8(1)(b) of Regulation (EC) No 40/94)
      Judgment of the Court of First Instance (Fourth Chamber), 25 May 2005 
      Summary of the Judgment
      1.     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 – Similarity
            of the marks concerned – Criteria for assessment – Specific graphic features of the verbal elements of a complex sign – Influence
            on the sound representation of the sign
      (Council Regulation No 40/94, Art. 8(1)(b))
      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 – Likelihood
            of confusion with the earlier mark – Word mark PC WORKS and figurative mark W WORK PRO
      (Council Regulation No 40/94, Art. 8(1)(b))
      1.     In the context of the assessment of the visual, phonetic and conceptual similarities between two opposing marks, which seeks
         to establish or to exclude the existence of a likelihood of confusion on the part of the relevant public within the meaning
         of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark, the overall impression created among the targeted public
         by each of the two signs must be taken into account.
      
      More particularly, where complex marks are compared on a phonetic level, although in the strict sense the phonetic reproduction
         of a complex sign corresponds to that of all its verbal elements, regardless of their specific graphic features, which fall
         more within the scope of the analysis of the sign on a visual level, the visual impression created by the specific graphic
         features of the verbal elements of such a sign is liable to influence the sound representation of the sign, so that it is
         compatible with a proper assessment of the degree of phonetic similarity to carry out an analysis combining both visual and
         phonetic criteria.
      
      In the case of a complex word and figurative mark, the verbal elements are also figurative elements which, depending on their
         specific graphic features, are capable of producing a more or less marked visual impact. Thus, where such a sign consists
         of several verbal elements, it is quite conceivable that some of them may, because of their size, colour or position, for
         example, attract the consumer’s attention more, so that he or she, needing to refer orally to the sign, will be prompted to
         pronounce only those elements and to disregard the others.
      
      (see paras 41-44)
      2.     There exists, for the average Spanish consumer, a likelihood of confusion between the word mark PC WORKS, registration of
         which as a Community trade mark is sought for ‘apparatus for recording, transmitting and reproducing sound or images, loudspeakers,
         amplifiers, record players, tape players, compact disc players, tuners, and parts and fittings for all the aforesaid goods’,
         it being specified that ‘all the aforesaid goods relat[e] to computers and computer hardware’, in Class 9 of the Nice Agreement,
         and a mark consisting of a mixed word and figurative sign made up of three vertically arranged elements, the first of which
         consists of a sign reproducing a black disc in which there is a white uppercase ‘w’, the second of which consists of the word
         ‘work’ written in black uppercase letters, and the third of which consists of a black rectangle in which there are three small
         white uppercase letters, spaced apart, forming the word ‘pro’, previously registered in Spain in respect of ‘electronic audio
         equipment; loudspeakers; sound reproducing apparatus; radio, television and video apparatus’, also in Class 9, in so far as,
         first, the signs in question essentially relate to the same sort of goods, namely electric apparatus the purpose of which
         is to reproduce sound and images, and, second, the trade mark applied for and the earlier mark are similar on the visual,
         phonetic and conceptual levels, so that there is a real risk that the relevant public may form a mistaken impression as to
         the commercial origin of the goods concerned.
      
      (see paras 29, 51, 53)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
      25 May 2005 (*)
      
      (Community trade mark – Opposition proceedings – Application for a Community word mark PC WORKS – Earlier national figurative mark W WORK PRO – Refusal of registration – Article 8(1)(b) of Regulation (EC) No 40/94)
      In Case T-352/02,
      Creative Technology Ltd, established in Singapore (Singapore), represented by M. Edenborough, Barrister, J. Flintoft, S. Jones and P. Rawlinson, Solicitors,
      
      applicant,
      v
      Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by B. Holst Filtenborg and S. Laitinen, acting as Agents,
      
      defendant,
      the other party to the proceedings before the Board of Appeal of OHIM being
      José Vila Ortiz, residing in Valencia (Spain),
      
      ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 4 September 2002 (Case R 265/2001-4), relating
         to an opposition between Creative Technology Ltd and José Vila Ortiz,
      
       
      THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
      composed of H. Legal, President, P. Mengozzi and I. Wiszniewska‑Białecka, Judges,
      Registrar: H. Jung,
      having regard to the application lodged at the Registry of the Court of First Instance on 25 November 2002, 
      having regard to the response lodged at the Registry of the Court of First Instance on 8 April 2003, 
      further to the hearing on 24 November 2004, 
      gives the following
      Judgment
       Background to the dispute
      1       On 4 November 1997, the applicant submitted an application for registration of a Community trade mark to the Office for Harmonisation
         in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94 of 20 December 1993 on the
         Community trade mark (OJ 1994 L 11, p. 1), as amended.
      
      2       The trade mark in respect of which registration was sought was the word mark PC WORKS. The goods in respect of which registration
         was sought are in Class 9 of the Nice Agreement concerning the International Classification of Goods and Services for the
         Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description:
         ‘Apparatus for recording, transmitting and reproducing sound or images, loudspeakers, amplifiers, record players, tape players,
         compact disc players, tuners, and parts and fittings for all the aforesaid goods’.
      
      3       The application was published on 26 October 1998 in Community Trade Marks Bulletin No 81/98.
      
      4       On 22 January 1999, Mr J. Vila Ortiz brought an opposition under Article 42 of Regulation No 40/94 to the applicant’s application
         for registration, on the ground that it would cause a likelihood of confusion within the meaning of Article 8(1)(b) of that
         regulation. The opposition related to all the goods covered by the applicant’s trade mark application and was based on the
         national figurative mark reproduced below:
      
      
         
      5       That trade mark had been registered in Spain on 10 October 1994 in respect of ‘electronic audio equipment; loudspeakers; sound
         reproducing apparatus; radio, television and video apparatus’ in Class 9.
      
      6       By decision of 26 January 2001, the Opposition Division held that there was a likelihood of confusion between the opposing
         signs and, accordingly, rejected the applicant’s application in respect of all the goods. 
      
      7       On 19 March 2001, the applicant brought an appeal against the decision of the Opposition Division (Case R 265/2001). In that
         appeal, it amended the specification of goods covered by its application by adding the following clarification: ‘all the aforesaid
         goods relating to computers and computer hardware’.
      
      8       By decision of 4 September 2002 (‘the contested decision’), the Fourth Board of Appeal of OHIM confirmed the decision of the
         Opposition Division and dismissed the appeal. The Board of Appeal took the view that the trade mark application and the earlier
         mark covered essentially the same sort of goods, namely electric apparatus the purpose of which is to reproduce sound and
         images, and that the opposing signs were visually, phonetically and conceptually similar.
      
       Forms of order sought by the parties
      9       At the hearing, the applicant declared that it was withdrawing its head of claim that OHIM should be ordered to grant its
         trade mark application.
      
      10     The applicant claims that the Court should: 
      –       annul the contested decision and the decision of the Opposition Division;
      –       order OHIM to pay the costs of the present proceedings and the costs incurred before the Board of Appeal and the Opposition
         Division. 
      
      11     OHIM contends that the Court should: 
      –       dismiss the action; 
      –       order the applicant to pay the costs. 
       Law
      12     In support of its action, the applicant relies on a single plea, alleging infringement of Regulation No 40/94 in so far as
         the Board of Appeal was wrong in finding that there is a likelihood of confusion between the opposing signs. 
      
       Arguments of the parties
      13     The applicant points out that the comparison between two marks in order to assess whether there is a likelihood of confusion
         must be carried out having regard to the overall impression created by each of the signs. However, it is not permissible,
         when making such an assessment, to break down the opposing signs in order to compare their various constituent elements, particularly
         when, as in this case, firstly, there is no evidence to support the conclusion that the targeted public would engage in such
         an operation and, secondly, the elements of which the opposing signs consist have, in themselves, a weak distinctive character,
         the latter residing essentially, for each of the marks in question, in the overall impression produced by the interaction
         of those various elements. It is also inappropriate, in the applicant’s view, to confer extensive protection on a mark when
         that protection is based on one of its constituent elements which has a weak distinctive character. 
      
      14     In this case, the earlier mark consists of three elements, the letter ‘w’, the word ‘work’ and the word ‘pro’, whereas the
         trade mark applied for comprises only two elements, the word ‘pc’ and the word ‘works’. Moreover, whereas the distinctive
         character of the earlier mark stems from the interaction between the elements ‘w’ and ‘work’, the third component playing
         only a limited role in the overall impression created by the sign, the distinctive character of the trade mark applied for
         is based on the interaction between the words ‘pc’ and ‘works’. 
      
      15     Thus, the mere circumstance that the letters forming the word ‘work’ are common to both opposing signs is not sufficient to
         demonstrate that there is a likelihood of confusion between those signs.
      
      16     As regards, in particular, the comparison between the opposing signs on a visual level, the applicant points out that the
         earlier mark is a figurative mark, whereas the trade mark applied for is a word mark. The applicant notes in particular that
         the three elements forming the earlier mark are arranged vertically, the element consisting of the letter ‘w’ dominating the
         overall impression, whereas the two components of the trade mark applied for are arranged horizontally.
      
      17     On a phonetic level, the earlier mark is referred to orally either by successively pronouncing the three elements ‘w’, ‘work’
         and ‘pro’ which form it or by pronouncing the word ‘work’ alone if the elements ‘w’ and ‘pro’ are regarded as purely graphic.
         In contrast, the trade mark applied for can be referred to only by pronouncing the words ‘pc works’ together. Whatever the
         pronunciation of the earlier mark may be, it is different, in the applicant’s view, from the trade mark applied for, since
         the letter ‘w’ cannot be confused with the element ‘pc’ and the word ‘work’ is not likely to be confused with the verbal element
         ‘pc works’.
      
      18     On a conceptual level, the applicant submits that, even if the words ‘work’ and ‘works’ have no meaning to the average Spanish
         consumer, in relation to whom the likelihood of confusion must be assessed, that consumer will not be prompted to associate
         them and will regard them as two different words. In particular, he will be unable to perceive the word ‘works’ as the plural
         form of the word ‘work’. If, on the other hand, it is to be concluded that the targeted public has sufficient knowledge of
         the English language to understand the sense of those words, it will have to be conceded that that public is also able to
         notice their different meanings.
      
      19     In addition, the applicant points out that the goods covered by the trade mark application are, by their very nature, the
         subject of careful purchasing decisions on the part of the relevant consumer, so that the latter will make a decision to purchase
         them only after ensuring that they are actually suitable for his needs. That circumstance further reduces the likelihood of
         confusion for the targeted public. 
      
      20     OHIM contends that the Board of Appeal did not err in law and that it was right in considering that there is a likelihood
         of confusion between the opposing signs. 
      
       Findings of the Court
      21     Article 8(1)(b) of Regulation No 40/94 provides that, ‘upon opposition by the proprietor of an earlier trade mark, the trade
         mark applied for shall not be registered … if because of its identity with or similarity to the earlier trade mark and the
         identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part
         of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood
         of association with the earlier trade mark’.
      
      22     According to settled case‑law, the risk that the public might believe that the goods or services in question come from the
         same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion.
      
      23     According to that case‑law, the likelihood of confusion must be assessed globally, according to the perception in the mind
         of the relevant public of the signs and of the goods or services in question, taking into account all factors relevant to
         the case, in particular the interdependence between the similarity of the signs and the similarity of the goods or services
         identified (see Case T‑162/01 Laboratorios RTB  v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 31 to 33, and the case‑law cited).
      
      24     In this case, given the nature of the goods concerned, the specification of which is reproduced in paragraphs 2, 5 and 7 above,
         the targeted public, in relation to which the likelihood of confusion must be analysed, consists of average consumers. It
         is also clear from Article 8(1)(b) of Regulation No 40/94 that the targeted public is that which resides in the territory
         of the Member State in which the earlier mark is protected, namely, in this case, Spain.
      
      25     Although it is true that the goods supplied by the applicant, consisting of items of audiovisual equipment for use inter alia
         in connection with a computer, are aimed at a public which has a more or less detailed knowledge of computers and is familiar
         with the use of electronic equipment, the fact remains that, at the present time, the supply and consumption of such goods
         and their distribution among a wide public, consisting mainly of young people, are such that they cannot be regarded as confined
         to a restricted and specialised circle of consumers, even though they cannot be defined as mass consumer goods. Similarly,
         although it is true that some of the goods concerned are likely, because of their degree of sophistication and their cost,
         to be the subject of a more careful purchasing decision, that is not the case, as was rightly pointed out by OHIM in its response,
         with all the goods in question. Thus, it must be held that the targeted public consists of average consumers who are reasonably
         well informed and reasonably observant and circumspect.
      
      26     In accordance with Article 8(1)(b) of Regulation No 40/94, and in the light of the foregoing considerations, it is therefore
         necessary to compare, first, the goods concerned and, second, the opposing signs. 
      
       The goods in question
      27     According to settled case‑law, in assessing the similarity of the goods or services in question, all the relevant factors
         pertaining to the relationship between those goods or services are to be taken into account. Those factors include, inter
         alia, their nature, their end users and their method of use and whether they are in competition with one another or are complementary
         (Case T‑388/00 Institut für Lernsysteme v OHIM – Educational Services (ELS) [2002] ECR II‑4301, paragraph 51).
      
      28     In this case, the opposition is based on an earlier mark registered in respect of goods in Class 9 and directed against the
         registration of the trade mark applied for in respect of goods in the same class.
      
      29     It should be noted that the applicant does not dispute the finding of the Board of Appeal that the marks in question essentially
         relate to the same sort of goods, namely electric apparatus the purpose of which is to reproduce sound and images.
      
      30     That finding must be accepted.
      31     The clarification introduced before the Board of Appeal (see paragraph 7 above) by the applicant in the specification of goods
         covered by its application for registration, restricting it to apparatus and equipment for use in connection with computers
         and computer hardware only, does not alter such an assessment. The mere circumstance that the same clarification does not
         appear in the specification of the opponent’s goods is insufficient to invalidate the finding that the goods in question share
         the same nature and are likely to have the same end users. In that regard, it must be held, as was rightly pointed out by
         OHIM in point 21 of its response, that the specification of the goods covered by the earlier mark is sufficiently broad to
         include the goods covered by the trade mark applied for.
      
       The signs in question
      32     In this case, the earlier mark consists of a mixed word and figurative sign made up of three vertically‑arranged elements,
         the first of which consists of a sign reproducing a black disc in which there is a white uppercase ‘w’, the second of which
         consists of the word ‘work’ written in black uppercase letters, and the third of which consists of a black rectangle in which
         there are three small white uppercase letters, spaced apart, forming the word ‘pro’. The trade mark applied for consists of
         the verbal element ‘pc works’.
      
      33     With regard to the comparison of the two marks in question on a visual level, it should be recalled, at the outset, that the
         Court has already held that there is no reason why it should not be determined whether there is any visual similarity between
         a word mark and a figurative mark since the two types of mark have graphic form capable of creating a visual impression (Case
         T‑110/01 Vedial v OHIM– France Distribution (HUBERT) [2002] ECR II‑5275, paragraph 51).
      
      34     Next, it must be recalled that the Court has held that a complex word and figurative trade mark cannot be regarded as being
         similar to another trade mark which is identical or similar to one of the components of the complex mark, unless that component
         forms the dominant element within the overall impression created by the complex mark. That is the case where that component
         is likely to dominate, by itself, the image of that mark which the relevant public keeps in mind, with the result that all
         the other components of the mark are negligible within the overall impression created by it (Case T-6/01 Matratzen Concord  v OHIM– Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 33).
      
      35     In this case, it must be observed, first, that one of the elements of the earlier mark, namely the word ‘work’, is very similar
         to one of the verbal elements of which the trade mark applied for is composed.
      
      36     Next, it must be pointed out that, as regards the visual comparison of the marks in question, the Board of Appeal took the
         view that the words ‘work’ and ‘works’ respectively constitute, on a visual level, the dominant elements of the earlier trade
         mark and of the trade mark applied for. 
      
      37     In that connection, as regards, in the first place, the earlier trade mark, it must be pointed out that the element consisting
         of the word ‘work’ occupies a central position in relation to the other graphic elements of the sign and constitutes, proportionally,
         its most significant component in terms of size. In addition, the graphic element consisting of the black rectangle containing
         the letters ‘pro’, which appears just below the word ‘work’, creates, by virtue of its dimensions and colour, a highlighting
         effect which both feeds the impression that the element in question has only a secondary function in relation to the element
         consisting of the word ‘work’ and helps to reinforce the visual impact of the latter. Finally, so far as concerns the element
         consisting of the black disc containing the letter ‘w’, its visual impact is absolutely minimal compared with that of the
         element reproducing the word ‘work’, mainly because of its smaller size. It follows that the Board of Appeal did not make
         an error of assessment in finding that such an element dominates the overall visual impression of the earlier trade mark.
      
      38     So far as concerns, in the second place, the trade mark applied for, the word ‘works’ must be considered to be dominant in
         relation to the word ‘pc’, which, although it is the first element of the sign, nevertheless has a much lower visual impact
         by virtue of the fact that it occupies a portion of space corresponding to little more than a third of that occupied by the
         word ‘works’. Consequently, the Board of Appeal was not wrong in finding that the latter constitutes the element dominating
         the overall visual impression of the trade mark applied for.
      
      39     In the light of the foregoing considerations, it must be held that there is a strong visual similarity between the opposing
         signs by virtue of the fact that their dominant elements consist for the most part of the same graphic signs, namely the letters
         ‘w’ ‘o’ ‘r’ and ‘k’, arranged in the same sequence, reproducing the word ‘work’, and that they differ only to the extent that
         the trade mark applied for adds to that sequence a further sign, namely the letter ‘s’.
      
      40     On a phonetic level, the Board of Appeal took the view, as did OHIM in its response, that Spanish consumers are unlikely to
         refer to the opponent’s trade mark by pronouncing all its verbal elements, namely ‘w’, ‘work’ and ‘pro’. Since they would
         not engage in a detailed analysis of the mark, they would tend more to concentrate on the word ‘work’, perceiving the element
         consisting of the letter ‘w’ as purely decorative and disregarding the element ‘pro’ on account of its small size. 
      
      41     It must be noted, as a preliminary point, that the conclusion reached by the Board of Appeal is the result of an analysis
         combining both visual and phonetic criteria. It must therefore be examined whether such an approach is compatible with a proper
         assessment of the degree of similarity between two opposing trade marks, in order to determine whether there is any likelihood
         of confusion. 
      
      42     In that regard, it must be pointed out that, in the strict sense, the phonetic reproduction of a complex sign corresponds
         to that of all its verbal elements, regardless of their specific graphic features, which fall more within the scope of the
         analysis of the sign on a visual level. 
      
      43     However, in the context of the assessment of the visual, phonetic and conceptual similarities between two opposing marks,
         which seeks to establish or to exclude the existence of a likelihood of confusion on the part of the relevant public, the
         overall impression created among the targeted public by each of the two signs must be taken into account. 
      
      44     In the case of a complex word and figurative mark, the verbal elements are also figurative elements which, depending on their
         specific graphic features, are capable of producing a more or less marked visual impact. Thus, where such a sign consists
         of several verbal elements, it is quite conceivable that some of them may, because of their size, colour or position, for
         example, attract the consumer’s attention more, so that he or she, needing to refer orally to the sign, will be prompted to
         pronounce only those elements and to disregard the others. The visual impression created by the specific graphic features
         of the verbal elements of a complex sign is therefore liable to influence the sound representation of the sign.
      
      45     In this case, as was pointed out in paragraph 37 above, the word ‘work’ dominates the overall visual impression of the earlier
         mark and constitutes the verbal element likely to attract the attention more and to be immediately noticed and easily remembered.
         The other verbal elements of the sign have only a lesser impact in that regard. First, the element ‘pro’ will be difficult
         to remember because of its small size and will not be immediately perceived as a word since the three letters of which it
         consists are spaced far apart from one another. Second, the sign ‘w’, consisting of an isolated letter which, moreover, is
         not very commonly used in the Spanish language, will be perceived more as a decorative element.
      
      46     It follows from the foregoing that the Board of Appeal did not make an error of assessment in considering that the opponent’s
         mark is likely to be identified orally by the targeted Spanish consumer by pronouncing only the word ‘work’. Since the phonetic
         comparison must be between the sound forms of the signs ‘work’ and ‘pc works’, it must be concluded that there is a certain
         similarity, given that the two signs share, in the same sequence, the majority of the letters of which they are composed.
      
      47     The Board of Appeal concluded that there is also a similarity between the two opposing signs on a conceptual level, assuming
         that the public concerned knows the meaning of the English words ‘work’ and ‘works’. In its response, OHIM pointed out that
         the marks in question evoke the same idea, namely that of ‘a physical effort directed towards doing or making something’.
         
      
      48     In that connection, it must first of all be noted that the word ‘pc’ in the trade mark applied for has a descriptive character
         in relation to the goods concerned, being, both in English and in Spanish, an abbreviation for ‘personal computer’. From the
         conceptual point of view, the distinctive element of that mark therefore consists of the word ‘works’. In the case of the
         earlier mark, it must be held, for reasons analogous to those set out in paragraphs 43 to 45 above and in the absence of non‑verbal
         figurative elements having independent evocative force, that the dominant element on a conceptual level consists of the word
         ‘work’. 
      
      49     Secondly, it must be regarded as plausible, as the applicant itself seems to recognise, that the targeted public, being made
         up of consumers familiar with the use of computers, has sufficient knowledge of English to understand the meaning of the word
         ‘work’ and to recognise its plural form in the word ‘works’. 
      
      50     In those circumstances, the Board of Appeal did not make an error of assessment in considering that the two opposing marks
         are also similar on a conceptual level. 
      
      51     All the foregoing considerations show that, on the visual, phonetic and conceptual levels, the trade mark applied for and
         the earlier mark are similar. 
      
       The likelihood of confusion
      52     It is settled case‑law that the assessment of the likelihood of confusion, in which all the relevant factors must be taken
         into account, must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall
         impression created by them, bearing in mind, in particular, their distinctive and dominant components (judgments of the Court
         of Justice in Case C-251/95 SABEL [1997] ECR I‑6191, paragraph 23, and in ELS, cited above, paragraph 62). The average consumer of the type of goods or services in question, whose perception of marks
         plays a decisive role in the global appreciation of the likelihood of confusion, normally perceives a mark as a whole and
         does not proceed to analyse its various details (SABEL, paragraph 23).
      
      53     In this case, in view of the similarities between the opposing signs and of the fact that they refer to goods of the same
         kind, it must be concluded that the Board of Appeal did not make an error of assessment in considering that there is, in this
         case, a real risk that the relevant public may form a mistaken impression as to the commercial origin of those goods. 
      
      54     In the light of all the foregoing, the applicant’s claims for annulment must be rejected. 
       Costs
      55     Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the
         costs, in accordance with the form of order sought by OHIM.
      
      56     In accordance with Article 136(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of
         the proceedings before the Board of Appeal are to be regarded as recoverable costs. The same does not apply to costs incurred
         for the purposes of the proceedings before the Opposition Division, and the applicant’s claim for reimbursement of those costs
         must, in any event, be rejected on that ground. The applicant’s claim for reimbursement of costs incurred for the purposes
         of the proceedings before the Board of Appeal must also be rejected, since the claims for annulment have been rejected. 
      
      On those grounds,
      THE COURT OF FIRST INSTANCE (Fourth Chamber)
      hereby:
      1.      Dismisses the action; 
      2.      Orders the applicant to pay the costs.
       
      
               Legal
            
            
               Mengozzi 
            
            
               Wiszniewska-Białecka 
            
         Delivered in open court in Luxembourg on 25 May 2005.
       
      
               H. Jung
            
             
            
                     H. Legal
            
         
               Registrar
            
             
            
                     President
            
         * Language of the case: English.