CELEX: C2007/020/17
Language: en
Date: 2007-01-27 00:00:00
Title: Case C-488/06 P: Appeal brought on 27 November 2006 by L & D S.A. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 7 September 2006 in Case T-168/04 L & D S.A. v OHIM

27.1.2007   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 20/12
            
         Appeal brought on 27 November 2006 by L & D S.A. against the judgment of the Court of First Instance (Fourth Chamber) delivered on 7 September 2006 in Case T-168/04 L & D S.A. v OHIM
   (Case C-488/06 P)
   (2007/C 20/18)
   Language of the case: Spanish
   Parties
   
      Appellant: L & D S.A. (represented by: S. Miralles Miravet, abogado)
   
      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Julios Sämann Ltd
   Form of order sought
   
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               set aside the judgment of the Court of First Instance in its entirety
            
         
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               annul paragraphs 1 and 3 of the decision of the Second Board of Appeal of OHIM of 15 March 2004, in so far as it (1) partially annuls the decision of the Opposition Division and refuses registration of the mark applied for in respect of goods in Classes 3 and 5, and, (2) orders each one of the parties to bear the costs that they incurred in the opposition proceedings and the appeal;
            
         
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               order OHIM to pay all the costs.
            
         Pleas in law and main arguments
   Infringement of Article 8(1)(b) of Regulation No 40/94 (1).
   The Court of First Instance infringed Article 8(1)(b) of Regulation No 40/94 by concluding: (i) that the earlier Community mark No 91.991 had acquired a distinctive character; (ii) that the figurative mark with the verbal element ‘Aire Limpio’ No 252.288 and the earlier Community figurative mark No 91.991 were similar; and, (iii) that there was a likelihood of confusion.
   Infringement of Article 73 of Regulation No 40/94
   The Opposition Division of OHIM (decision of 25 February 2003) and the Board of Appeal (decision of 15 March 2004) confined their examination to the mark whose registration is sought (‘Aire Limpio’ No 252.288) and the earlier Community mark No 91.991. However, the Court of First Instance relied on documents related to other marks, particularly in relation to international mark No 328.915 ‘ARBRE MAGIQUE’. As a consequence, the grounds of the judgment under appeal refer to a mark that even the applicant excluded from the comparative analysis in order to determine the existence of a likelihood of confusion. By so doing, the applicant was unable to present its case properly in respect of the arguments and information relating to other marks other than Community trade mark No 91.991, on which is based the error in the judgment under appeal of the Court of First Instance.
   
      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).