CELEX: 62010CO0418
Language: en
Date: 2011-03-28 00:00:00
Title: Order of the Court (Fifth Chamber) of 28 March 2011. # Herhof-Verwaltungsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). # Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Opposition proceedings - Earlier mark STABILAT - Figurative sign 'stabilator' - Relative ground for refusal - Likelihood of confusion - Absence of similarity of the goods and services. # Case C-418/10 P.

Order of the Court (Fifth Chamber) of 28 March 2011 – Herhof v OHIM
      (Case C-418/10 P)
      Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Opposition proceedings – Earlier mark STABILAT – Figurative sign ‘stabilator’ – Relative ground for refusal – Likelihood of confusion – Absence of similarity of the goods and services
      1.                     Community trade mark – Appeals procedure – Action before the Union judicature – Jurisdiction of the General Court – Review
            of the lawfulness of decisions of the Boards of Appeal – Review of the legal classificaiton made of the facts of the case
            – Included (Council Regulation No 40/94, Art. 63) (see paras 47-48)
      2.                     Appeals – Grounds – Incorrect assessment of the facts and evidence – Inadmissibility – Review by the Court of the assessment
            of the facts and evidence – Possible only where the clear sense of the evidence has been distorted – Plea alleging such distortion
            (Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1); Rules of Procedure of the Court of Justice, Art. 112(1)(1)(c))
            (see paras 66-67)
      Re:
      
         Appeal against the judgment of the General Court (Fourth Chamber) of 7 July 2010 in Case T-60/09 
               Herhof
                v 
               OHIM
                – 
               Stabilator
               , by which that court dismissed the action brought by the proprietor of the Community word mark STABILAT in respect of goods
                  and services in Classes 1, 7, 11, 20, 37, 40 and 42, against the decision of the Fourth Board of Appeal of OHIM of 16 December
                  2008, rejecting its opposition against registration of the figurative Community trade mark stabilator in respect of goods
                  and services in Classes 19, 37 and 42 – Incorrect assessment of the similarity between the services covered by the marks at
                  issue – Infringement of the right to be heard before a court.
               
            Operative part
      
         
                  1.
               
               
                  
               
               
                  	The appeal is dismissed. 
               
            
         
                  2.
               
               
                  
               
               
                  	Herhof-Verwaltungsgesellschaft mbH is ordered to pay the costs.